Posted by: Patricia Salkin | August 4, 2015

NY Appellate Court Upholds Denial of Subdivision Request Finding Planning Board’s Decision was Based on Substantial Evidence and was not Arbitrary or Capricious

Gordon Ostojic (“petitioner”) was the owner of a parcel of land located in Northport, New York which held a one-story framed dwelling. The property had ingress and egress via a covenanted right-of-way over a neighbor’s driveway. Ostojic applied to the Planning Board of the Town of Smithtown to subdivide the property into two parcels. The proposed plan called for the construction of a second dwelling on the subdivided parcel, and the construction of a driveway from the property to a cul-de-sac to replace the need for the existing right-of-way.

The Planning Board denied the application based on its findings that: (1) there is a practical and feasible alternative design that will be less destructive of the environment; (2) there is a practical and feasible alternative design that would permit the owners of an adjacent parcel to also subdivide their parcel; and (3) the alternative design noted in points 1 and 2 is consistent with the design objectives of the subdivision regulations that recommend designs that minimize regrading, that are consistent with having a minimum impact on the environment, and that are useful for future development. The petitioner thereafter commenced a CPLR article 78 proceeding to review the Planning Board’s determination, asserting that the Planning Board’s denial of his application was conclusory, not in keeping with the facts or testimony, and not based on any competent evidence in the record, and the court upheld the planning board’s determination.

The appellate court affirmed stating that a local planning board has broad discretion in deciding applications for subdivision approval. The court will substitute its judgment for that of a planning board only when “the determination was affected by an error of law, or was arbitrary and capricious or an abuse of discretion, or was irrational” (Matter of Greencove Assoc., LLC v. Town Bd. of the Town of N. Hempstead, 87 AD3d 1066. When reviewing a planning board’s determination, “courts consider substantial evidence only to determine whether the record contains sufficient evidence to support the rationality of the Board’s determination” (Matter of Kearney v. Kita, 62 AD3d). The court agreed with the lower court’s determination that the Planning Board’s denial had a rational basis, was not illegal, and was not arbitrary and capricious. The Planning Board had considered the opinion of the Town’s Engineering Department, the expert opinion and extensive testimony of the Town of Smithtown Director of Planning, and the numerous documents submitted by the petitioner’s architect. It is the duty of the Planning Board who are in a better position than the court to assess the accuracy and credibility of the experts’ conflicting representations, to weigh the evidence and to exercise its discretion in approving or denying approval of the petitioner’s application. The Court also noted that there is no rule of law that entitles the petitioner, as a matter of right, to build a driveway or road over the land between the cul-de-sac and his property.

Ostojic v Gee, 2015 WL 4460599 (NYAD 2d Dept 7/22/2015)


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