Opinion
October 2, 1995
Appeal from the Supreme Court, Westchester County (Leavitt, J.).
Ordered that the judgment is affirmed, with costs to the intervenor-respondent, payable by the appellants.
In connection with its plan to build a single residence on its 1.015 acre parcel, the intervenor, Household Relocation Management, Inc., submitted an application for a wetlands permit to the Planning Board of the Town of New Castle (hereinafter the Planning Board). The petitioners, owners of property adjoining the intervenor's parcel, have challenged the grant of that permit, as well as the grant of a tree removal permit by the Town Engineer of the Town of New Castle (hereinafter Town Engineer).
The New Castle Town Code enumerates various environmentally related factors that the Planning Board was required to consider in reviewing the application for the permit (see, New Castle Town Code § 137-6 [A]). The record discloses that these factors were duly considered by the Planning Board, which had before it findings by the Town Engineer, its own environmental consultant, and the intervenor's experts, all to the effect that the proposed action will have inconsequential, if any, environmental impact. Although the submissions made to the Planning Board by the petitioners' experts were in sharp disagreement with these findings, we cannot conclude, on the instant record, that the Planning Board abused its discretion or acted illegally, arbitrarily, or capriciously in granting the wetlands permit (see, Matter of Koncelik v. Planning Bd., 188 A.D.2d 469, 470; Matter of Marx v. Planning Bd., 185 A.D.2d 348; Matter of Currier v. Planning Bd., 74 A.D.2d 872, affd 52 N.Y.2d 722; see also, Matter of Pell v. Board of Educ., 34 N.Y.2d 222). We reach a similar conclusion with respect to the granting of the tree removal permit by the Town Engineer (see, New Castle Town Code § 121-6 [A] [2]).
The Planning Board did not abuse its discretion, as lead agency under SEQRA (see, ECL art 8), by issuing a negative declaration (see, Matter of Har Enters. v. Town of Brookhaven, 74 N.Y.2d 524, 530; see also, Akpan v. Koch, 75 N.Y.2d 561, 570).
The petitioners additionally argue that the intervenor's lot was an illegal lot. In part, they base this assertion on the fact that previously, both the subject parcel and an adjacent lot were owned by the same parties, John and Barbara Little, who are husband and wife. They assert that a merger occurred during the common ownership of the two parcels and that therefore, the intervenor's parcel ceased to be a legal subdivision. This argument is without merit. It is well settled that there can be no merger in the absence of a specific merger clause in the governing ordinance (see, Matter of Allen v. Adami, 39 N.Y.2d 275; see also, Matter of Van Perlstein v. Oakley, 203 A.D.2d 853; Matter of Barkus v. Kern, 160 A.D.2d 694, 695-696). In the instant case, under the pertinent zoning ordinance in effect during the common ownership, a merger was deemed to occur only where a building permit with respect to the property was sought (see, New Castle Town Code § 60-421.4; see also, New Castle Town Code § 60-421.4, as amended by Local Laws, 1978). Since no building permit was sought during such common ownership, no merger of the two lots occurred.
As initially configured on the original subdivision map, filed in 1949, the intervenor's parcel was comprised of .859 acres. As noted, the subject parcel and an adjacent parcel had previously been held in common ownership by John and Barbara Little. In 1974, the Littles conveyed the subject parcel to Barbara Little, individually. Simultaneously, the Littles conveyed a triangular sliver comprised of approximately .156 acres of the adjacent parcel to Barbara Little. This triangular sliver was contiguous with the subject parcel. Thus, at the completion of these conveyances, the subject parcel was comprised of 1.015 acres. After the transfer, both the subject parcel and the adjacent parcel conformed to the one-acre residential building requirement that became effective in 1950.
The petitioners assert that the subject parcel is an illegal lot because the Planning Board did not approve the transfer of the triangular sliver from the adjacent lot. Based solely on the relevant Town Ordinance then in effect, this argument is without merit. That ordinance did not require subdivision approval where, as occurred here, an existing lot was divided in such a manner so as not to "creat[e] a new parcel or lot", provided such division did not "decrease the area or dimension of any existing lot or parcel * * * below the zoning requirement" (New Castle Land Subdivision Regulations, former § I; cf., Freundlich v. Town Bd., 73 A.D.2d 684, affd 52 N.Y.2d 921; Matter of Bay View Pines Estates v. Wines, 204 A.D.2d 316; see also, Matter of Allen v Adami, 39 N.Y.2d 275, 278, supra).
The parties' remaining contentions are without merit (see, Matter of Bowers v. Aron, 142 A.D.2d 32; Matter of Bien v. City of Amsterdam, 126 A.D.2d 852, 853-854; Matter of Concerned Citizens Against Crossgates v. Town of Guilderland Zoning Bd. of Appeals, 91 A.D.2d 763; see also, 22 NYCRR 130.1-1 [c]). Copertino, J.P., Santucci, Hart and Friedmann, JJ., concur.