Opinion
No. 2014–0972.
02-09-2015
In the Matter of the Application for Judgment Pursuant to Article 78 of the Civil Practice Law and Rules by Rocco LUCENTE, Petitioner, v. Paulette TERWILLIGER, Respondent.
Mahlon R. Perkins, Esq., Dryden, Attorney for Petitioner. Susan H. Brock, Esq., Town Attorney, Ithaca, for Town of Ithaca.
Mahlon R. Perkins, Esq., Dryden, Attorney for Petitioner.
Susan H. Brock, Esq., Town Attorney, Ithaca, for Town of Ithaca.
Opinion
PHILLIP R. RUMSEY, J.
Petitioner commenced this CPLR article 78 proceeding seeking judgment compelling respondent to issue a certificate, pursuant to Town Law § 276(8), establishing default approval of the final plat for subdivision of property located in the Town of Ithaca (the proposed residential subdivision is known as Briarwood II).
The relevant facts are undisputed. Petitioner owns approximately 48 acres of vacant land near Sapsucker Woods Road in the Town of Ithaca. On June 20, 2006, the Town of Ithaca Planning Board, acting as the lead agency, made a negative declaration of environmental significance under the State Environmental Quality Review Act (ECL, article 8 [SEQRA] ) for the proposed subdivision. On July 18, 2006, the Planning Board granted preliminary subdivision approval for the division of petitioner's property into 50 lots, consisting of 47 residential lots, two parcels totaling 25 acres to be donated to Cornell University, and a small parcel to be dedicated to the Town of Ithaca to become part of an existing town park. On September 10, 2007, petitioner filed an application seeking final subdivision approval. On that same date, the Town enacted a moratorium prohibiting the Planning Board from considering the application for final subdivision approval and, further, prohibiting any development of petitioner's property. The moratorium was extended three times, ultimately expiring on December 20, 2009.
The application for final subdivision approval differs from the preliminary plat with respect to the provisions made for stormwater drainage. The preliminary plan proposed to manage stormwater runoff by diverting it into, and retaining it in, existing wetlands on the property. It was subsequently determined that the New York State Department of Environmental Conservation would not approve use of the existing wetlands in that manner for stormwater management. The final plan advances an entirely new proposal for managing stormwater runoff which does not use the existing wetlands; rather, it requires that approximately two acres of forest, located within an area designated as an Unique Natural Area by the Tompkins County Environmental Management Council, be cleared, with one acre of the cleared forest land permanently inundated with water (see Affidavit of Susan Ritter, sworn to December 12, 2014 [Ritter Affidavit], ¶ 13). The revised drainage plan also required changes to the sizes and shapes of three lots, construction of drainageways to route stormwater away from the existing wetlands, and the construction of smaller stormwater facilities or rain gardens on six lots (id., ¶ 14). Petitioner's engineer, Lawrence Fabbroni, and his counsel at that time, David Tyler, both agreed that the changes to the stormwater drainage system required additional review under SEQRA (see petition, Exhibit 4 [letter from Fabbroni to Jonathan Kanter, Town of Ithaca Director of Planning, dated September 10, 2007]; Affidavit of Susan Brock, sworn to December 12, 2014, ¶¶ 3–4 [reporting a conversation that she had with Tyler and statements that she thereafter made to the Planning Board in the presence of Fabbroni prior to submission of the final application about the need for additional SEQRA review] ). With the final subdivision application, petitioner submitted a revised Long Environmental Assessment Form, Part I, reflecting the changes made to the stormwater management plan.
The Planning Board took no action on the application for final subdivision approval. By letter dated September 9, 2014—nearly five years after the moratorium expired—petitioner's present counsel requested that respondent issue the certificate required by Town Law § 276(8), on the basis that the time for the Planning Board to act on the application for final subdivision approval had expired without the Planning Board having taken any action. Respondent replied by letter dated September 25, 2014, advising that she was unable to issue the requested certificate because the final application was incomplete in two respects, and, further, because additional SEQRA review—required as a result of the modified stormwater drainage plan—had not been completed. Petitioner then timely commenced this proceeding.
Where environmental review has been completed, the Town Law requires that a Planning Board act on a final application within 62 days (see Town Law § 276[6] ). The Subdivision Regulations of the Town of Ithaca shorten that time to 45 days after submission of a final plat (see Ithaca Town Code § 234–16[C] ).
The petition also seeks declaratory judgment. Where, as here, relief is sought because a Town Clerk refuses to issue a certificate of approval by default under Town Law § 276(8), the proper means of seeking a remedy is commencement of a CPLR article 78 proceeding against the Town Clerk (see Matter of Pope v. DePoala, 176 A.D.2d 1017, 1019, lv denied 80 N.Y.2d 752 [1992] ). Where relief is available by means of a CPLR article 78 proceeding, a declaratory judgment action is duplicative and unnecessary (see Matter of Gable Transp., Inc. v. State of New York, 29 AD3d 1125, 1127–1128 [2006] ).
Town Law § 276(8) provides as follows:
“Default approval of preliminary or final plat. The time periods prescribed herein within which a planning board must take action on a preliminary plat or a final plat are specifically intended to provide the planning board and the public adequate time for review and to minimize delays in the processing of subdivision applications. Such periods may be extended only by mutual consent of the owner and the planning board. In the event a planning board fails to take action on a preliminary plat or a final plat within the time prescribed therefor after completion of all requirements under the state environmental quality review act, or within such extended period as may have been established by the mutual consent of the owner and the planning board, such preliminary or final plat shall be deemed granted approval. The certificate of the town clerk as to the date of submission of the preliminary or final plat and the failure of the planning board to take action within the prescribed time shall be issued on demand and shall be sufficient in lieu of written endorsement or other evidence of approval herein required.”
(Emphasis supplied).
The application for final subdivision approval was filed on September 10, 2007, and the moratorium prohibiting the Planning Board from taking action on the application expired on December 20, 2009. It is undisputed that the Planning Board took no action on the application; thus, if the time for it to act had commenced, it failed to timely act, and respondent should be compelled to issue the requested certificate, notwithstanding her contention that the application was incomplete (see Matter of King v. Chmielewski, 76 N.Y.2d 182, 188 [1990] ; Matter of Biondi v. Rocco, 173 A.D.2d 700 [1991] ; Matter of Pekar v. Town of Veteran Planning Bd., 58 A.D.2d 703 [1977] ). However, as noted by respondent, the time for the Planning Board to act has not begun to run because the required SEQRA review has not been completed.
A valid moratorium extends the time for action on a subdivision application (see Matter of Dune Assoc. v. Anderson, 119 A.D.2d 574 [1986] ). Petitioner does not challenge the validity of the moratorium in this proceeding, but asserts that the Planning Board failed to timely act even if measured from the end of the moratorium.
Although the Town Clerk and the Town's Director of Planning both opine that the application was incomplete for various reasons other than the necessity for further SEQRA review (see petition, Exhibit 6 [letter from Terwilliger to Perkins dated September 25, 2014]; Ritter Affidavit, ¶¶ 15–19, 28), it is undisputed that no action was ever taken on the application by the Planning Board. Although the failure to submit a complete application, including a proper final plat, may warrant denial of an application, it does not excuse a failure to act; the planning board must determine whether the final plat is complete (see Matter of King v. Chmielewski, 76 N.Y.2d 182, 188 [1990] 109 AD3d 930; see also Town of Amherst v. Rockingham Estates, LLC, 98 AD3d 1241, 1242 [2012] [in granting judgment permitting a planning board to rescind its erroneous approval of a final plat that differed from the preliminary plat, the court noted “that a final plat should differ from the preliminary plat, if at all, only by any modifications that were required by the Planning Board at the time of approval of the preliminary plat”] ). Thus, the alleged insufficiency or incompleteness of the application for reasons other than SEQRA, standing alone, did not relieve the Planning Board from the duty to act on the application.
Prior to 1994, Town Law § 276 was silent with respect to how the deadlines it imposed for action on subdivision applications were to be coordinated with SEQRA review (see Rice, Practice Commentaries, McKinney's Cons Laws of NY, Book 61, Town Law C276 [Practice Commentaries], at p. 25). In 1994, the statute was amended to require the filing of a negative declaration or a Draft Environmental Impact Statement (DEIS) as a prerequisite to the granting of preliminary plat approval (id., at p. 26). Section 276(8) was further amended in 1995 to expressly provide that a planning board's time to act on a subdivision application did not begin to run until “after completion of all requirements under the state environmental quality review act” (see L.1995, c. 423, § 10). It has been observed that although amendment of the statute to ensure coordination with SEQRA was “intended to ensure that subdivision review be accomplished within a predictable and relatively prompt period,” it instead “eliminate[d] any sanction for failing to comply with SEQRA in a timely manner and demolishe[d] a balanced compromise for guaranteeing completion of the review process within a relatively reasonable period of time” (Practice Commentaries, p. 39). Thus, where SEQRA review has not been completed, the time periods for action by the planning board are not triggered, and an applicant is not entitled to default approval if the planning board does not act (see Matter of Benison Corp. v. Davis, 51 AD3d 1197 [2008] ; Matter of Pheasant Meadow Farms, Inc. v. Town of Brookhaven, 31 AD3d 770 [2006] ; Matter of Bibeau v. Village Clerk of Vil. of Tuxedo Park, 145 A.D.2d 478 [1988] ; Matter of Honess 52 Corp. v. Widholt, 176 Misc.2d 57, 63–65 [1998] ).
In this case, the Planning Board made a negative declaration under SEQRA before it granted preliminary plat approval. Petitioner relies on the original negative declaration—issued prior to preliminary subdivision approval—to argue that the Planning Board's failure to act on his application for final subdivision approval requires that respondent be ordered to provide the requested certificate pursuant to Town Law § 276(8). However, his agents conceded that the submitted final plat differed from the preliminary plat, upon which the negative declaration was based, by making modifications to the stormwater management plan that triggered the need for additional SEQRA review. Thus, it is undisputed that SEQRA review of the project shown on the final plat was never completed. Accordingly, as noted, the time period for action by the Planning Board was not triggered, and petitioner is not entitled to default approval of the final plat.
Based on the foregoing, the petition is dismissed, with prejudice.
This decision constitutes the order and judgment of the court. The transmittal of copies of this decision, order and judgment by the court shall not constitute notice of entry (see CPLR 5513 ).