Perkins v. Town of Dryden Planning Bd.

• Citation: 102 N.Y.S.3d 300,172 A.D.3d 1695
• Decision Date: 16 May 2019
• Docket Number: 527589
• Parties: In the Matter of Bradley P. PERKINS, as President of the Willow Glen Cemetery Association, et al., Appellants, v. TOWN OF DRYDEN PLANNING BOARD et al., Respondents, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 1695

102 N.Y.S.3d 300

In the Matter of Bradley P. PERKINS, as President of the Willow Glen Cemetery Association, et al., Appellants,

v.TOWN OF DRYDEN PLANNING BOARD et al., Respondents, et al., Respondents.

527589

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: March 27, 2019

Decided and Entered: May 16, 2019

Maines Firm, PLLC, Ithaca (Russell E. Maines of counsel), for appellants.

True, Walsh & Sokoni, LLP, Ithaca (Khandikile Mvunga Sokoni of counsel), for Town of Dryden Planning Board, respondent.

Hancock Estabrook, LLP, Syracuse (Janet D. Callahan of counsel), for Sun8 PDC LLC and another, respondents.

Before: Egan Jr., J.P., Devine, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Aarons, J.

(1) Appeal from a judgment of the Supreme Court (Faughnan, J.), entered August 10, 2018 in Tompkins County, which, in a proceeding pursuant to CPLR article 78, among other things, denied petitioners' motion to amend and dismissed the petition, and (2) motion to take judicial notice of two maps and to submit a scaled copy of a map.

Respondents SUN8 PDC LLC and Distributed Sun LLC (hereinafter collectively referred to as SUN8) leased farmland owned by respondent Scott Pinney in the Town of Dryden, Tompkins County in order to construct five separate community solar projects. A community solar project uses a group of solar arrays in a central location and provides utility-bill credits to subscribers in the community. The solar arrays are similar to rooftop solar panels but, instead, are located at the ground level. In connection with the construction of the projects, SUN8 sought to divide the farmland into five separate lots and place one project per lot. In 2017, the Dryden Town Board granted SUN8 a special use permit and site plan approval and respondent Town of Dryden Planning Board approved the preliminary subdivision plat. Petitioners Willow Glen Cemetery Association and Sarah Osmeloski, who both own land adjacent to the farmland, commenced two separate proceedings seeking, among other things, to enjoin the issuance of building permits and challenging the Planning Board's approval of the preliminary plat. In a December 2014 judgment, Supreme Court dismissed both petitions.

In February 2018, the Planning Board approved two resolutions – one allowing for a common driveway to provide access to all five subdivision lots from Route 13 and one approving the final subdivision plat for the solar project. In March 2018, petitioners commenced this CPLR article 78 proceeding seeking to annul the Planning Board's resolutions. Petitioners alleged that the Planning Board "lacked jurisdiction to consider any site plan application exceeding the four-lot limitation of [Town of Dryden Zoning Law § 602]" and that the resolutions were ultra vires and void because they authorized a common driveway for five flag lots on the final subdivision. Petitioners subsequently discovered that the notice of petition – but not the petition – erroneously described the resolutions being challenged as having been issued by the "Dryden Town Board," as opposed to the Planning Board. Petitioners moved to amend the notice of petition, which Supreme Court granted. SUN8 and the Planning Board separately joined issue. The Planning Board also submitted an affidavit from Ray Burger, the director of the Town of Dryden Planning Department, who averred that only three of the five lots on the farmland were flag lots. Petitioners thereafter moved via order to show cause to amend their petition by, as relevant here, deleting the claims alleging that the number of flag lots to be served by a common driveway on the subdivision exceeded the limit provided by Town Law § 280–a and Town of Dryden Zoning Law § 602 and adding claims alleging that the subdivision violated the frontage and access requirements of those same statutes. Supreme Court found that respondents were not prejudiced by the proposed amendments, but nonetheless concluded that they were without merit. Accordingly, Supreme Court denied the motion and dismissed the petition. Petitioners appeal. We affirm.

"A party may amend his or her pleading ... by setting forth additional or subsequent transactions or occurrences, at any time by leave of court" ( CPLR 3025[b] ). "When leave is sought to amend a pleading, the movant need not establish the merits of the proposed amendment and, in the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" ( Lakeview Outlets Inc. v. Town of Malta , 166 A.D.3d 1445, 1446, 89 N.Y.S.3d 733 [2018] [internal quotation marks and citations omitted]; see Gulfstream Anesthesia Consultants, P.A. v Cortland Regional Med. Ctr., Inc. , 165 A.D.3d 1430, 1433, 87 N.Y.S.3d 343 [2018] ; Ferguson v. Hart , 151 A.D.3d 1242, 1243, 56 N.Y.S.3d 624 [2017] ). Whether to grant or deny leave to amend is a matter resting within the discretion of the trial court and its decision will not be disturbed absent an abuse thereof (see NYAHSA Servs., Inc., Self–Ins. Trust v. People Care Inc. , 156 A.D.3d 99, 101, 64 N.Y.S.3d 730 [2017] ; Bynum v. Camp Bisco, LLC , 155 A.D.3d 1503, 1504, 66 N.Y.S.3d 47 [2017] ; Johnson v. State of New York , 125 A.D.3d 1073, 1073–1074, 3 N.Y.S.3d 774 [2015] ).

Petitioners assert that Supreme...