MEMORANDU. In the Matter of the Petition of BY: HON. BRUCE D. THE ROSLYN TORAH FOUNDATION, INC.,

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1 MEMORANDU M SUPREME COURT, COUNTY OF NASSAU, IAS PART 9 In the Matter of the Petition of BY: HON. BRUCE D. THE ROSLYN TORAH FOUNDATION, INC., MOTION SEQUENCE ALPERT #3 Petitioner, INDEX NO: 14790/99 For Review Pursuant to Article 78 of the CPLR of a certain determination of THE PLANNING BOARD OF THE INCORPORATED VILLAGE OF NORTH HILLS, MOTION DATE: January 11,200l DATED: March 22,200l Respondent. Farrell Fritz, P.C. Attorneys for Petitioner EAB Plaza, West Tower Uniondale, NY Meyer, Suozzi, English & Klein, P.C. Attorneys for Respondent 1505 Kellum Place Mineola, NY Application by petitioner, The Roslyn Torah Foundation, Inc., pursuant to CPLR article 78 for an order vacating and annulling several conditions imposed

2 upon the subdivision approval by the respondent, The Planning Board of the 2 Incorporated Village of North Hills, as ultra vires and outside its jurisdiction and as arbitrary and capricious is granted in part, and denied in part, and this matter is remitted to The Planning Board of North Hills for further consideration in accordance herewith. Petitioner is a religious corporation and record owner of a parcel of land located at the southerly side of I.U. Willets Road at the intersection of Shelter Rock Road in the Town of North Hempstead. Petitioner brings this Article 78 proceeding to challenge so much of a determination of The Planning Board of the Incorporated Village of North Hills dated March 10, 1999, as imposed certain conditions on its approval of a subdivision relating to the subject parcel. The Planning Board approved subdivision of petitioner s property into nine residential lots, and one institutional lot (Lot 10) with an existing building to be used for a synagogue, subject to twelve conditions. Three of the five disputed conditions require the Village Planning Board s prior consent or approval for the location and appearance of any extension, enlargement or relocation of the existing building or any new structure on Lot 10 (Condition 7); for any fence, barricade, post or other obstruction to access (Condition 8); and for any signs, banners or other displays facing or visible from 1-U. Willets Road or Shelter Rock Road

3 (Condition 9). Condition 10 requires that conditions one through five and seven 3 through nine be e mbod ied in a declaration of covenants and restrictions to be recorded against the institutional lot, and provides for attorneys fees should the V illage be required to seek enforce Cond m ent. ition 12 provides that in the event of default in ti m ely co m pliance w ith Condition 10, approval shall lapse. There w as an additional reference in Condition 12 wh ich w as a typographical error and respondent stipulates to its invalidation. Petitioner contends that the respondent i mp roperly equated petitioner s application for subdivision approval w ith one for site plan revie w, even though i w as not authorized to do so since the t wo p rocedures are statutorily distinct and serve different purposes. Petitioner contends that in N assau County, pursuant to section of the N assau County Charter, a village is authorized to exercise its jurisdiction extraterritorially only for the purpose of subdivision approval. Petitioner contends that neither the County Charter nor any other state la w g r the V illage authority to conduct a site plan revie w o f real property outside of the V illage boundaries. The respondent contends that it had authority pursuant to N assau County Charter $ to approve petitioner s application for subdivision of property located outside the V illage, but w ithin 300 feet of the mun icipal boundary, and tha

4 4 it approved the subdivision subject to various conditions which were related to this authority. The Board contends that none of the five challenged conditions constituted an effort by the Board to regulate or otherwise control any of the religious activities of petitioner and related only to the proposed development of petitioner s property. The Planning Board of the Incorporated Village of North Hills does not have zoning or site plan jurisdiction over petitioner s property, as it is not within the boundaries of the Village. However, pursuant to Nassau County Charter 1610, the Planning Board of the Village does have jurisdiction over the parcel s subdivision because the proposed subdivision is within 300 feet of the Village boundaries (Section 1610 [2] of the Nassau County Charter). This authority for approving subdivision plats is discrete from that for approving individual site plans (see, Riegert Apartments Corp. v Planning Board of the Town of Clarkstown, 57 NY2d 206,208 [Town Law granted power to compel contribution for money in lieu of parkland with regard to subdivision plat-approvals, but not with regard to individual site plans]). The distinctions have been outlined as follows: A site plan is not a subdivision plat. A site plan usually evidences the proposed development of a single lot... intended to remain in one ownership. A subdivision plat contemplates

5 division of one tract into a number of smaller lots with eventual separate ownership of each such lot. The authority which may be conferred upon pianning boards with respect to subdivision plats... are set forth specifically in the planning enabling acts. Site plans are not even mentioned in such acts. A site plan is a plan... showing the proposed location of the buildings, parking areas, and other installations on the plot, and their relation to existing conditions... (2 Rathkopf, Zoning and Planning [4th ed.], [1], pp [n omitted]). (R iegert Apart m ents Corp. v Planning Board of the To wn o f C larksto wn, NY2d 206,211, supra). The site-plan enabling statute permits a village planning board to consider means of access, parking, screening, signs, landscaping, architectural features, the location and dimensions of buildings, and the effect on adjacent land uses (Village Law a [2][a]), precisely the type of considerations addressed in the Village Board s conditions. In contrast, Village Law , the enabling statute addressed to subdivisions, regulates different areas of concern, including in general danger to health or peril from fire, flood, drainage or other menace to neighboring 5 properties or the public health, safety and welfare. (Village Law [ 11; see also Nassau County. Charter $ 1610[3]; M atter of D ia m ond v Specter, 39 AD2d 942,943, affd 32 NY2d 8 11). Section specifically permits a village planning board to require reservation of parkland and compliance with zoning regulations, and to consider the location, width and grade of highways, and the

6 6 place m ent of monuments at block corners. W ith respect to streets, it m ay require that all streets sho wn on plats be suitably graded and paved, and that all street signs, side walks, street lighting standards, curbs, gutters, street trees, water m ain fire alar m signal devices, sanitary se wers and stor m d rains be installed in accordance with the standards of the appropriate village depart m ents ( V illage La $ [2]-[4]; see also, Nassau County Charter $ [4]). The Nassau County Charter specifies several additional considerations to subdivision approval including the extent and nature of planting or screening where lots or plots back on existing highways, roads or streets on the plat, and the installation of side walks and curbs upon existing highways, roads or streets which intersect or bound the plat ( Nassau County Charter [4] [b], [d]). In su m, the enabling legislation distinguishes bet plan approval, and with respect to each local ween subdivision or plat approval and site mun icipalities [hlave only the la wm aking powers the Legislature confers on the (Kamhi m v Town of Yorktown, 74 NY 2d423,427). No twithstanding the foregoing distinctions, the V illage of North Hills is specifically e mpowered to perfor m bo th subdivision and site plan approval as a single process. Section 150-3(C) of the Code of the Village of North Hills provides that [tlhe Planning Board shall have authority to review and approve

7 7 sketch plats, preliminary plats and final plats and subdivisions... The Code defines subdivision to inciude the division of any parcel of land into more than one lot, and also to include a [slite plan... which shows the arrangement, layout and design of the proposed use of a single parcel of land as shown on said plan. (Code of the Village of North Hills, ). Thus, the Code of the Village of North Hills enables its Planning Board to merge plat and site plan approval in the subdivision process (Code of the Village of North Hills, $ [C], 150-l 8, ), and although the Village Code is thus inconsistent with state enabling statutes represented in the Village Law, the Village s supersession authority under Municipal Home Rule Law 5 lo( l)(ii)(d)(3) permits such merger, unless the legislature [elxpressly shall have prohibited the adoption of such a local law (K amh i v Town of Yorktown NY2d, ,430, supra). The Legislature has not prohibited consideration of plat and site plan approval together, and, were the Village Planning Board addressing a subdivision for property within the Village boundaries, its decision and conditions relating to site plan approval would withstand the challenge here presented. However, the exercise of its powers here is extraterritorial, and [olrdinarily, an ordinance has no efficacy beyond the limits of the municipality (City of Poughkeepsie v Vassar College, 35 Misc2d 604,606 [Supreme Court Dutchess

8 8 Coun ty]; see, M atter Huntington of Yacht Club v Incorporated Village of Huntington Bay, 272 AD 2d327,328; Incorporated Village of Port Jefferson v Consolidated Petroleum Terminal, Inc., 71 Misc2d 948 [Supre m e Court, Suffolk County]). Thus, the Board s expanded power under the Village ordinance is not applicable to petitioner s property, and the Board s authority w ith respect thereto derives solely fro m the N assau County Charter wh ich li m its the V illage s extraterritorial jurisdiction to traditional concerns under subdivision rules. W the Court is cognizant of isolated authority suggesting that si m ilar tests m a used for both site plans and subdivisions (see, Holmes v Planning Bd. of Town of New Castle, 78 AD2d 1, 16), the w eight of authority is to the contrary (see, Riegert Apartments Corp. v Planning Board of the Town of Clarkstown, 57 NY 2d206, supra; Moriarity v Planning Board of the Village of Sloatsburg, 119 AD 2d188; Pomona Pointe Associates v Incorporated Village of Pomona, 185 M isc2d 13 1, 137 [Supre m e Court, Rockland Coun ty] [ w ithin the process of subdivision approval, individual lots cannot be subjected to site plan revie w Thus, t his Court concludes that in its exercise of extraterritorial subdivision jurisdiction the V illage w as w ithout authority to i mpose conditions seven, eight and nine which are properly relevant to site plans. Respondent also contends that, not w ithstanding its lack of jurisdiction,

9 petitioner consented to inclusion of conditions eight and nine, and they should be upheld. 9 By letter dated March 4, 1999 counsel for petitioner made, in relevant part, the following representations to the Board: a) That Rabbi Kramer, on behalf of the North Hills Synagogue, acknowledges the Resolution approved by the Town of North Hempstead in relation to the site plan approval and further acknowledges the terms of same and that he and his Synagogue shall be bound by those terms; d) That the Synagogue agrees that it will not permanently barricade or obstruct that area where prior to this date wooden posts were erected. These posts no longer exist. The Synagogue has removed the temporary banner and acknowledges that prior to the installation of any other signs, approval and proper permits will be in place before the erecting of such signs. None of the foregoing representations requires the Board s consent or prior approval as do disputed conditions seven, eight and nine. Nor did petitioner consent to conditions seven, eight and nine at the public hearing. There petitioner consented to incorporation of the conditions imposed by the Town of North Hempstead. The agreed upon Town of North Hempstead conditions are: 7) The parking area is to remain accessible at all times. There shall be no fence, chain, gate or other means of restricting access

10 10 to the parking lot. 8) Any application for a sign permit must be reviewed by the Building Commissioner and Planning Commission as a Site Plan Modification under the provisions of ( M ) of the Town Code. The conditions imposed by the Village Planning Board go beyond the quoted conditions imposed by the Town, and in the absence of consent are ultra vires. Moreover, Condition 1 of the Village Board s determination specifically incorporates the Town challenged Condition s site plan approval. Given that the applicant has not l, the Board is free to require the applicant to specifically comply with conditions 7 and 8 as outlined in the Town s site plan approval. Petitioner does not address the Village Board s requirement of a covenant which runs with the land, except to object to the imposed obligation for attorney s fees. Attorneys fees are not recoverable absent statute, court rule or agreement providing for same (see, Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5). As the Village s condition requiring petitioner to pay counsel fees is not authorized by statute, court rule or agreement, it must be stricken. Petitioner s remaining objection to the time limit requiring that restrictive covenants be filed within ninety days of final subdivision approval is not addressed in the papers. This time limit appears reasonable on its face, as it serves to place potential purchasers on notice of restrictions. Accordingly, Condition number 12

11 may remain in any approval issued by the Board on remand. 11 This concludes all proceedings under index number 14790/99. Settle Judgment on Notice. r u J.S.C. gqv xxx

STATE OF NEW YORK. Petitioners, SUBMISSION DATE: 07/12/04. Respondents. Notice of Motion/ Order to Show Cause... Answering Papers...

STATE OF NEW YORK. Petitioners, SUBMISSION DATE: 07/12/04. Respondents. Notice of Motion/ Order to Show Cause... Answering Papers... SHORT FORM ORDER Present: SUPREME COURT HON. KENNETH A. DAVIS. STATE OF NEW YORK In the Matter of an Article 78 Proceeding ROCKWOOD DEVELOPMENT CORP. and ARTHUR WISCOVITCH against- Justice TRIAL/lAS, PART