39 Misc. 2d 1 | N.Y. Sup. Ct. | 1963
This is an article 78 proceeding to review a determination of the Planning Board of the Town of Carmel in Putnam County, disapproving a subdivision proposed for Canopus Island in Lake Mahopac which is located in the town. On the initial hearing, the court determined that the board’s return did not comply either with the second paragraph of section 282 of the Town Law or the provisions of the order to show cause and, consequently, directed that body to file an amended return in accordance with the mandate of section 1291 of the Civil Practice Act. Those directions have been complied with and also the court has received additional affidavits on behalf of the parties which are hereby made a part of the record in this matter.
The record discloses that in September of 1961, petitioner obtained title to this 44-acre island which is zoned for residential use, and in December, 1961, submitted what it refers to as a “ proposed subdivision map” to the Planning Board for approval. The board rejected this application on January 9, 1962, stating “ existing laws and regulations are not sufficiently comprehensive to afford consideration of your application at this time.” Following several conferences, discussions and exchanges of letters, this refusal was vacated, in effect, by the acceptance of petitioner’s application which thereafter was placed before the Planning Board and considered at a regular meeting on July 11, 1962. While there was some uncertainty at the outset of this article 78 proceeding concerning the date of the board’s determination disapproving the application (see initial return and prior decision), the board chairman in a supplemental affidavit concedes that “ under date of August 27, 1962, the Board made findings which stated reasons for rejection of the application.”
Respondents urge that this proceeding is not timely. Section 282 of the Town Law requires that “ [a]ny person * * * aggrieved by any decision of the planning board concerning such plat * * * may present to * * * the supreme court a petition * * * within thirty days after the filing of the decision in the office of the board.” A petition dated September 26, 1962, was presented to the Supreme Court and an order to show cause commencing this proceeding issued on that date. Clearly, this proceeding has been instituted within the required
Petitioner urges that this “ proposed subdivision plat ” must be deemed approved due to the failure of the board to observe the time requirements of section 276. The board contends that the 45-day limitation period is not involved since the ‘ ‘ submission ” here was for “ preliminary ” approval, rather than for any final action in accordance with the Land Subdivision Regulations for the Town of Carmel, adopted by the Planning Board and approved by the Town Board pursuant to the authority of section 272 of the Town Law.
The Regulations of the Planning Board of the Town of Carmel provide that the “ subdividing owner * * * shall apply for and secure approval of such proposed subdivision in accordance with the following procedure, which includes, basically, two steps: (1) Preliminary Layout (2) Subdivision Plat.” The “ Preliminary Layout ” consists of a map showing the location of the entire property under consideration in relation to surrounding property and streets. All pertinent features, such as existing structures, streets, railroads, water bodies and other physical characteristics which would influence the subdivision design and a topographical description at a contour interval of not more than five feet are to be included on the “ Preliminary Layout. ’ ’ Further, it shall show the location, width and approximate grade of all proposed streets; the approximate location, dimensions and area of all proposed or existing lots; all property proposed to be set aside for playground or park use and the proposed provision of water supply, fire protection, disposal of sanitary waste, storm water drainage, street trees, street lighting fixtures, street signs and sidewalks, data on which must be available for consideration at this stage. (Regulations of Planning Bd., Town of Carmel, art. IV, § 1, subds. A-J.) The board’s regulations then provide that: ‘ ‘ After discussion of the Preliminary Layout, the Planning Board will advise the applicant, in writing of the specific changes it will require in the Layout, and the character and extent of required improvements and reservations which it will require as a prerequisite to the approval of the Subdivision Plat. This shall constitute tentative approval of the Preliminary Layout.”
The petitioner’s map here is entitled “ Preliminary Map of Mahopac Isle ” and contains the following note: “ 1 — all lot areas & lot dimensions are approximate. ’ ’ (Emphasis supplied.)
The court is unable to accept the petitioner’s argument that the regulations adopted by the Planning Board constitute an improper exercise of municipal power. On the contrary, the court finds that these regulations governing the procedure to be followed do not conflict with the expressed or implied requirements of the Town Law pertaining to the submission and approval of subdivision plats. The procedure of having the proposed plat submitted in two stages, one approximate or preliminary in the nature of a trial balloon or “proposal”, and the second the final, definite and precise plan, not only permits a full discussion and hearing on the merits of the applicant’s ideas and suggestions but also affords greater opportunity for a complete airing of the municipal requirements and demands. In short, the use of a preliminary plan allows for the full application of municipal planning in order to properly explore the feasibility of the proposal with a view to protecting the rights of the subdividing owner in relation to the anticipated and foreseeable impact that the proposed development may have upon the municipality at large.
While section 276 of the Town Law speaks in terms of plats without mention of preliminary layouts, there is no claim that this particular procedure is wielded to prevent or thwart plat submissions. Nor is there any issue in this proceeding that a preliminary layout must precede the final plat proposal or that an applicant may not finalize his plans without benefit of a preliminary discussion and without ascertaining on a formal basis the requirements or the difficulties to be overcome prior to expending a great deal of time and money.
Furthermore, there is no precise definition of the term ‘ ‘ plat ’ ’ contained in the Town Law. ‘ ‘ A plat is a subdivision of land into lots, streets and alleys (Gannett v. Cook, 245 Iowa 750).”
In Matter of Levin v. Thornbury (2 A D 2d 774, supra) a ‘ ‘ preliminary ’ ’ plat was automatically approved by virtue of section 179-k of the Village Law when the Planning Board failed to hold the required hearing. Although petitioner urges that Levin (supra) supports its position that the ‘ ‘ Preliminary Layout ” has been approved automatically, the court is of the opinion that the Levin case is inapposite. Levin was not concerned with an approximate map or plan that was submitted simply for ‘1 tentative approval ’ ’ and not for final action, but rather with a plat (i.e., proposed subdivision) that was preliminary merely in the sense that it had not been approved and that the improvements had not been constructed. Accordingly, the court holds that this ‘ ‘ Preliminary Layout ’ ’ is not entitled to automatic approval under section 276 of the Town Law and the Village Clerk who is a party will not be directed to issue a certificate pursuant to that section.
Nevertheless, the action of the Planning Board here cannot be sustained. Under their regulations, they are authorized to make only a tentative approval of a preliminary layout, which must be in writing and set forth the items, details, etc., if there be any, which they will require by way of a change, modification or addition to the plan as submitted. While any change no matter how slight is a rejection in fact of what has been submitted for approval, this rejection must take the form of offering a constructive proposal embodying their determination as to municipal requirements.
A Planning Board must offer some constructive method or alternative plan for utilizing the property in accordance with the dictates of the existing zoning requirements and the existing master plan or official map. Concluding that present laws are inadequate affords no solution to a difficult and serious problem and is tantamount to an abdication of responsibility. A failure to act or exercise official power in this area may penalize possibly
Accordingly, as the determination of the Planning Board rejecting petitioner’s “ Preliminary Layout” is unauthorized, it is annulled and the proceeding is remitted to the board for the purpose of making a “ tentative approval ” in accordance with the applicable rules and regulations.