Opinion
2001-08796
Argued April 19, 2002.
October 1, 2002.
In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Planning Board of the Town of Huntington dated July 3, 2000, granting the application of the respondents Daniel D. Dowd and Tracy M. Dowd for subdivision of their property into three lots, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Oliver, J.), dated September 20, 2001, which denied the petition and dismissed the proceeding.
Esseks, Hefter Angel, Riverhead, N.Y. (William W. Esseks and Anthony C. Pasca of counsel), for appellant.
Thelma Neira, Town Attorney, Huntington, N.Y. (James F. Matthews and Julie Berler-Khalouian of counsel), for respondents Planning Board of Town of Huntington and Town Board of Town of Huntington.
Morton Weber Associates, Melville, N.Y. (John A. Harras of counsel), for respondents Daniel D. Dowd and Tracy M. Dowd.
Before: SANDRA J. FEUERSTEIN, J.P., CORNELIUS J. O'BRIEN, THOMAS A. ADAMS, BARRY A. COZIER, JJ.
ORDERED that the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
The determination of the Planning Board of the Town of Huntington was not arbitrary or capricious and is supported by substantial evidence (see Matter of Cowan v. Kern, 41 N.Y.2d 591).
The parties' remaining contentions are without merit.
O'BRIEN, ADAMS and COZIER, JJ., concur.
I find that the proposed development plan in this case was not a cluster development as provided in Town Law § 278, but rather, required a variance application by the respondents, Daniel D. Dowd and Tracy M. Dowd (hereinafter the Developers). Accordingly, I must respectfully dissent as I would reverse the judgment of the Supreme Court, grant the petition, and annul the determination of the respondent Planning Board of the Town of Huntington (hereinafter the Board).
In 1999, the Developers purchased a 1.5-acre parcel of property in the Town of Huntington containing a historic building known as the Henry Townsend House. At about the same time, they submitted an application to subdivide the property as a cluster development pursuant to Town Law § 278. The application sought approval for three lots, with each requiring modification of the required setbacks. Although the petitioner and other nearby residents objected to the plan, the Board approved the plan as a cluster development. The petitioner commenced the present CPLR article 78 proceeding to review the Board's determination, alleging, among other things, that the Board did not have the authority to grant the proposed modification because there was no clustering of the development. The Supreme Court denied the petition and dismissed the proceeding, stating that the Board properly approved the cluster development. I disagree.
The purpose of cluster development is to allow "flexibility of design and development of land in such a manner as to preserve the natural and scenic qualities of open lands" (Town Law § 278[b]; see Matter of Bayswater Realty Capital Corp. v. Planning Bd. of Town of Lewisboro, 76 N.Y.2d 460; Matter of Kamhi v. Planning Bd. of Town of Yorktown, 59 N.Y.2d 385). A review of the plans submitted by the Developers demonstrates that there was no intent to preserve open land. Rather, the development appears to use all possible open space. The lots are virtually equal in size and the proposed structures on those lots are almost equally separated with no clustering of the buildings. The claim that the lot devoted to the Henry Townsend House served the purpose of preserving open space is disingenuous because there is no additional open space on that lot. Further, the contention that the change from a cul-de-sac driveway to a "flagstaff" driveway will preserve open space is not supported by the record. Even with such a modification from the original plan, every possible inch of the 1.5 acres has been used, with no open space remaining. This proposed development should be referred to the Board for determination of setback variances, as it is not properly a cluster development.