Van Euclid Co. v. Sargent

• Decision Date: 23 November 1983
• Citation: 470 N.Y.S.2d 750,97 A.D.2d 913
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of VAN EUCLID COMPANY, Respondent, v. Edward H. SARGENT, Jr., et al., Constituting the Planning Board of the Town of Bethlehem, Appellants, and Martin L. Barr, Intervenor-Appellant.

Page 750

470 N.Y.S.2d 750

97 A.D.2d 913

In the Matter of VAN EUCLID COMPANY, Respondent, v. Edward H. SARGENT, Jr., et al., Constituting the Planning Board of the Town of Bethlehem, Appellants and Martin L. Barr, Intervenor-Appellant.

Supreme Court, Appellate Division Third Department.

Nov. 23, 1983.

Maynard, O'Connor & Smith, Albany (Mae A. D'Agostino, Albany, of counsel), for appellants.

Martin L. Barr, Albany (Robert T. Biggerstaff, Albany, of counsel), for intervenor-appellant.

Jeneroff, Brandow, Mancini & Roth, Albany (Ralph G. Mancini, Albany, of counsel), for respondent Van Euclid Co.

Before MAHONEY, P.J., and MAIN, CASEY, MIKOLL and YESAWICH, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court at Special Term, entered December 16, 1982 in Albany County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Planning Board of the Town of Bethlehem denying petitioner's preliminary plat approval application.

Petitioner Van Euclid Company sought approval from respondent Planning Board of the Town of Bethlehem to develop a residential subdivision of 36 single-family houses on approximately 21 acres of land, said area being identified as "Norman's Gate". Petitioner also owns lots 48 and 50 on Euclid Avenue in said town which are not part of the proposed subdivision. These two lots each contain a single-family residence which petitioner intends to remove to accommodate an entrance road from Euclid Avenue to Norman's Gate. The proposed subdivision is adjacent to an existing residential subdivision which had been developed pursuant to a 1937 subdivision map, known as the "Boutelle" map, containing restricted covenants within a common scheme.

In support of its application, petitioner submitted a traffic study, numerous maps and statements of a land surveyor and landscape architect. Further, a local real estate broker testified that current homes in the immediate neighborhood should enjoy a normal increment in value after the subdivision was completed. Opposition to the proposed subdivision was voiced by neighboring property owners, one of whom was intervenor Martin Barr, who stated that they had purchased their homes because of the quiet and rustic character of the neighborhood. The neighbors were particularly concerned about increased traffic and a change in the character of the area. Significantly, one opposing witness introduced an engineer's report describing the instability of the soil along the Normanskill Valley which abuts the proposed subdivision.

On August 10, 1982, respondent board rejected petitioner's application holding (1) that the subdivision would violate section 276 of the Town Law, (2) that the subdivision would violate the restrictive covenants in the deeds of the adjacent property owners whose lands had previously been developed according to the Boutelle common design or scheme, (3) that the traffic study presented by petitioner was not comprehensive and definitive enough with respect to the Euclid Avenue/Delaware Avenue intersection, (4) that the proposed access road would change the neighborhood, and (5) that the information regarding the stability of the slopes fronting the Normanskill Valley was insufficient. Petitioner commenced this CPLR article 78 proceeding to vacate and annul the determination. Special Term held that respondent board's denial of petitioner's application was arbitrary and capricious and vacated the determination. This appeal by respondent board and intervenor Barr ensued.

Special Term was clearly correct in holding that petitioner's proposed modification of lots 48 and 50 on Euclid Avenue so as to provide an access road to the Norman's Gate subdivision did not violate section 276 of the Town Law. Subdivision 1 of section 276 was amended in 1956 to provide for planning board approval of the development of "entirely or partially undeveloped" plots. There is no statutory prohibition of approving new streets. The legislative intent in amending section 276 was to extend the planning board's jurisdiction to include subdivisions previously filed but not yet developed in order to prevent developers of land covered by old filed maps from avoiding modern subdivision regulations. Here, petitioner merely seeks to develop land, lots 48 and 50, that is covered by the old Boutelle map filed in 1937. Such an application is in harmony with amended section 276 of the Town Law.

Next, while we hold that Special Term erred in summarily dismissing intervenor Barr's contention that the proposed access road would violate restrictive covenants contained...