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Court Upholds Denial of Two Lot Subdivision

The Appellate Division upheld a determination to deny the subdivision of an approximately three acre parcel containing two vacant buildings into two lots, each containing one of the two existing buildings. In a Matter of Center of Deposit, Inc. v. Village of Deposit, the Court held:

“the Board identified a variety of reasons for its denial, including, among others, that the subject property lacked a legal means of ingress and egress and that the proposed subdivision would endanger ‘the health, safety, welfare and comfort’ of the Village at large ….Inasmuch as the Board’s conclusions – that there were significant safety issues surrounding the property and that petitioner had not established compliance with the relevant zoning laws – provided a rational basis to support its denial of petitioner’s application, such denial must be upheld (see Matter of MLB, LLC v Schmidt, 50 AD3d at 1434-1435).”

In addition, the Court rejected the claim that the planning board failed to act within the time required by Town Law. Initially, after holding a public hearing, the planning board had issued a SEQRA positive declaration, that was successfully challenged by the Petitioner. On remand the Board issued a negative declaration and held a further public hearing before denying the application. The Petitioner claimed that the hearing held prior to issuance of the positive declaration started the 62 day period for the board to issue a decision, in order to avoid a default subdivision approval. This claim was rejected by the Court.

“Petitioner contends that, because the Board held a public hearing on the application in October 2009, it lacked any authority to conduct additional hearings, and the time within which the Board was required to issue a determination on the subdivision application began to run when this Court set aside the initial positive declaration. We do not agree. Pursuant to Village Law § 7-728 (6) (c), a public hearing on the subdivision application must follow the filing of the negative declaration under SEQRA (accord Matter of Kittredge v Planning Bd. of Town of Liberty, 57 AD3d 1336, 1340 [2008]; see Town Law § 276 [6] [c]). Thus, the hearing held in October 2009 – prior to the issuance of the negative declaration – could not satisfy the hearing requirement under the Village Law, and the Board had 62 days after the issuance of the negative declaration in March 2012 to hold a public hearing, and an additional 62 days after the hearing to render a decision on the application.”

-Steven M. Silverberg