Town of Mamakating v. Vill. of Bloomingburg

• Decision Date: 18 July 2019
• Docket Number: 526638
• Citation: 174 A.D.3d 1175,105 N.Y.S.3d 611
• Parties: In the Matter of TOWN OF MAMAKATING et al., Appellants, v. VILLAGE OF BLOOMINGBURG et al., Respondents.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 1175

105 N.Y.S.3d 611

In the Matter of TOWN OF MAMAKATING et al., Appellants,

v.VILLAGE OF BLOOMINGBURG et al., Respondents.

526638

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

Calendar Date: June 3, 2019

Decided and Entered: July 18, 2019

Jacobowitz and Gubits, LLP, Walden (J. Benjamin Gailey of counsel), for appellants.

Alex Smith, Middletown, for Village of Bloomingburg and others, respondents.

Whiteman Osterman & Hanna LLP, Albany (Robert S. Rosborough IV of counsel), for Sullivan Farms II, Inc., respondent.

Before: Garry, P.J., Lynch, Clark, Devine and Aarons, JJ.

MEMORANDUM AND ORDER

Aarons, J. Appeal from a judgment of the Supreme Court (Mott, J.), entered March 9, 2018 in Ulster County, which dismissed petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to review, among other things, a determination of respondent Village of Bloomingburg Planning Board reaffirming subdivision and site plan approval for a development.

Respondent Sullivan Farms II, Inc. sought approval to construct a townhouse complex in the Village of Bloomingburg, Sullivan County. An environmental impact statement under the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA] ) was prepared and, in July 2009, respondent Village of Bloomingburg Board of Trustees adopted the findings of the SEQRA findings statement for the project. Later that month, respondent Village of Bloomingburg Planning Board adopted the findings of the Village Board of Trustees as its own. In 2010, the Village Planning Board granted subdivision and site plan approval to Sullivan Farms, and construction began in 2012.

In 2016, however, petitioner Town of Mamakating Planning Board, acting pursuant to an intermunicipal agreement that gave it the powers, authority and responsibilities of the Village Planning Board, rescinded the 2010 subdivision and site plan approval. Sullivan Farms thereafter amended its subdivision and site plan application and proposed to widen the roads to be in accordance with the applicable codes. Sullivan Farms also requested in its amended application that the Village Board of Trustees reaffirm the 2009 SEQRA findings and that the Village Planning Board reaffirm the 2010 subdivision and site plan approval. In January 2017, the Village Board of Trustees and the Village Planning Board took such requested action.¹

Petitioners commenced this combined CPLR article 78 proceeding and declaratory judgment action seeking, among other things, to annul the determination by the Village Board of Trustees to reaffirm the 2009 SEQRA findings and the determination by the Village Planning Board to reaffirm the 2010 subdivision and site plan approval. Petitioners thereafter moved for a preliminary injunction. Prior to answering, Sullivan Farms cross-moved to dismiss the petition on the basis of lack of standing. Respondent Village of Bloomingburg, the Village Planning Board and the Village Board of Trustees also made a pre-answer cross motion and joined Sullivan Farms' claim regarding lack of standing. In an October 2017 order, Supreme Court denied petitioners' motion and partially granted the cross motions. Following joinder of issue, the court, in a March 2018 judgment, dismissed the petition/complaint. Petitioners appeal. We affirm.

As an initial matter, to the extent that respondents argue, as an alternative ground for affirmance, that the Town Planning Board lacked the authority to rescind the 2010 subdivision and site plan approval, such argument is not properly before us. In addition to submitting an amended subdivision and site plan application, Sullivan Farms commenced a combined CPLR article 78 proceeding and declaratory action seeking, among other things, annulment of the Town Planning Board's rescission determination on the basis that the Town Planning Board had no authority to take such action. In a February 2017 judgment, Supreme Court dismissed Sullivan Farms' petition/complaint to the extent that it sought such relief. We subsequently dismissed Sullivan Farms' appeal therefrom as moot based on the action taken by the Village Planning Board in reaffirming the 2010 subdivision and site plan approval ( Matter of Sullivan Farms II, Inc. v. Town of Mamakating Planning Bd., 165 A.D.3d 1447, 1449–1450, 87 N.Y.S.3d 341 [2018] ). In view of our decision, respondents cannot, in this appeal, reassert their contention that the Town Planning Board's rescission determination was unlawful.

Assuming, without deciding, that petitioners have standing to bring this proceeding/action,² we find that Supreme Court correctly dismissed the petition/complaint. Petitioners argue that the Village Planning Board lacked the authority to reaffirm the 2010 subdivision and site plan approval. We disagree. "Despite the lack of statutory authority, a planning board may reconsider a determination if there has been a material change of circumstances since its initial approval of the plat or new evidence is presented" ( Matter of 1066 Land Corp. v. Planning Bd. of Town of Austerlitz, 218 A.D.2d 887, 887, 630 N.Y.S.2d 389 [1995] [citations omitted] ). Given that the record discloses that the Village Planning Board was presented with new information in the amended subdivision and site plan, we find that it was authorized to reaffirm the approval notwithstanding the fact that it had been previously rescinded.

We reject petitioners' contention that the reaffirmation of the 2010 subdivision and site plan approval by the Village Planning Board was arbitrary and capricious. The record discloses that various data and information were examined before reaffirming the approval. As part of its request that the Village Planning Board consider an amendment to its subdivision and site plan approval, Sullivan Farms submitted analyses from engineering experts examining the potential stormwater impacts and increased water usage due to the proposed expansions of the road. Sullivan Farms also submitted an analysis contesting the Town Planning Board's conclusions as to water usage and negative effects of increased traffic. The Village Engineer, after reviewing this material, recommended approving the amended subdivision and site plan application. The Village Planning Board reviewed and considered the foregoing information and, therefore, we cannot say that its determination to reaffirm the 2010 subdivision and site plan approval was arbitrary and capricious (see Matter of Edscott Realty Corp. v. Town of Lake George Planning Bd., 134 A.D.3d 1288, 1290–1291, 21 N.Y.S.3d 447 [2015] ). Furthermore, although petitioners offered competing expert opinions, the Village Planning Board was entitled to credit the information submitted by Sullivan Farms as opposed to that of petitioners (see Matter of Dugan v. Liggan, 121 A.D.3d 1471, 1473, 995 N.Y.S.2d 799 [2014] ). In addition, contrary to petitioners' claim, the Village Planning Board was not required to refer the revised subdivision and site plan approval to the applicable county planning department because "the particulars of the amendment were embraced within the original referral" ( Matter of Benson Point...