### Matter of Davidson v Town of Charlton Planning Bd. 2024 NY Slip Op 31501(U) April 29, 2024 Supreme Court, Saratoga County Docket Number: Index No. EF20221614 Judge: Richard A. Kupferman Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.STATE OF NEWYORK SUPREME COURT COUNTY OF SARATOGA
Inthe Matter oftheApplication of NICHOLAS DAVIDSON and CARRIEANN DAVIDSON, Petitioners/Plaintiffs,-againstTOWN OF CHARLTON PLANNING BOARD, DECISION, ORDER & JUDGMENT Index No.: EF20221614

THE TOWN OF CHARLTON, and TOWN OF CHARLTON TOWN CLERK, Respondents/Defendants, For an Order and Judgment PursuanttoArticle 78 ofthe Civil Practice Law& Rules, a Declaratory Judgmentpursuantto CPLR 3001, and an Order ofPermanent Injunction. Appearances: Jonathon B. Tingley, Esq. GilchristTingley, P.C. 251 River Street, Suite 201 Troy, NewYork 12180
_ Attorneys for Petitioners/Plaintiffs William J. Keniry, Esq. Tabner, Ryan & Keniry, LLP 18 Corporate Woods Blvd, Suite 8 Albany, NewYork 12211 Attorneys for Respondents/Defendants KUPFERMAN, J., The petitioners are siblings. They are seeking to subdivide a parcel ofreal property into two lots inthe Town ofCharlton ("Town"). The subjectproperty (ownedby the brother) has been the subject ofmany subdivisions over the years, leaving it in its current form with limited road frontage, despite its overall size of66 acres.

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### [* 1]The current subdivision application seeks to create a new lot (2.01 acres) for the sister to build a single-family residence. The Town's Planning Board ("Planning Board") initially referred the matterto the Town's Zoning Board ofAppeals ("ZBA") for an area variance for road frontage because the tax roll map showed the overall road frontage for the property as only 395.45 feet. 1 Atthat time, the frontage variance allegedly needed was approximately five feet (based on the tax roll map). During the proceedings before the ZBA, the petitioners' father (a prior owner of the property) appeared onbehalfofhis children. He discussedthe initial proposal, whichwas setforth
on a survey map from 2010 ("2010 map"). He clarified that the 2010 map depicts an abandoned house (also referred to as a farmhouse) that his son was rehabilitating. Afterthe renovations were completed, his son intended to rent out the farmhouse as a two-unithouse. During the public hearing before the ZBA in May 2021, members ofthe Planning Board voiced concerns regarding the proposed shared driveway for the two lots and the placement ofthe proposed house in front ofthe farmhouse. Inresponse to these comments, the father statedthathe could construct another driveway to eliminate the shared driveway, and offered to angle the proposed house so thatthe farmhouse was not directly behindthe proposed house. When asked if there was any major obstacle to moving the proposed subdivision to the left, the father stated that it would be more expensive butthat it could be done. During his discussions with the ZBA, the father agreed to modify the proposed plan to relocate the newproposed lot to the southern side ofthe road frontage ("proposed southern lot"). This still required a variance, because although the proposed southern lot (2.01 acres) would have

1 In contrast, the petitioners' map/survey from 2010 identifies the subject parcel as having a total road frontage ofapproximately 401 feet (with eachproposed lot having a minimum of200 feet). 2 

### [* 2]226 feet ofroadfrontage, the remaining lands ofthe largerparcel would be left with only 175 feet ofroad frontage, which was less than the minimum frontage required for a lot. The petitioners therefore sought a 25-foot frontage variance from the ZBA. In connection with the modified proposal, the petitioners submitted a new survey map ("2021 map"), which unlike the petitioners' prior map depicts wetlands covering a significant portion ofthe proposed southern lot. This generated significant concern giventhe limited setback distance available between these structures (the septic system, the well, and the house) and the wetlands. Ultimately, in December 2021, the ZBA granted the 25-foot variance for road frontage to allow for the applicantto proceed withthe subdivision. Thereafter, in January 2022, the Planning Board members raised concerns regarding the potential impact ofthe development on the wetlands, the limited area available to build in the proposed new lot, and the problems with replacing the proposed septic system or expanding the proposed house in the future. In response to these concerns, the petitioners submitted a revised map, whichproposedto reduce the size ofthe building envelope andplace the septic systemto the farthest point away from the wetlands. When asked at a meeting in February 2022 ifany other ways existed to mitigate against the wetlands' disturbance, the petitioners' surveyorresponded, "notreally." He indicatedthat they
were "very limited intheir space" and thatthis was "thebestthey coulddo."2 One ofthe Planning Board members stated that "it appears the downward grade from the septic system to the well is 0 feet one way and 100 feet the other way." Petitioners' surveyor stated that "the USDS topo lines

2The proposal was based partially on the brother's desire to retain the pond onhis property and to expand it in the future. In addition, alternative proposals were allegedly limited based on the condition ofthe land and the expenditures needed to improve it. 3 

### [* 3]do not represent the contours that are actually there, it is flat." Another Planning Board member expressed concern for future owners andtheir desire to increasethe house size and the septic size. At its February 2022 meeting, the Planning Board voted in favor of serving as the lead agency; issued a negative declaration under the State Environmental Quality Review Act ("SEQRA"); and scheduled a public hearing for March 21, 2022. The Planning Board, however, expressed concerns about the wetlands when it considered the potential environmental impacts from the subdivision. When completing the short EnvironmentalAssessment Form, the Planning Board included anotation, whichreads: "Thisproposedprojectviolates the policy ofthe planning board, Charlton Environmental Conservation Commission andTown Board to treat all [wetlands] regardless of[whose]jurisdictionwith a 100 feet buffer. This Boardneeds to see the [applicants'] plan to mitigate wetland impacts before it can make a final determination on this project." Priorto thepublichearing, theTown's designated engineer ("EDP") raised anissuerelating to sight distance at the proposed driveway and recommended that the Planning Boardrequire the applicantto provide a sightdistance evaluation (intersection sight distance) preparedby a licensed professional with traffic engineering experience in accordance with the criteria ofthe American Association ofState Highway and Transportation Officials ("AASHTO"). EDP also opined that the wetlands shown on the map it reviewed did not appear to be inclusive of the actual site conditions and that a gap appeared to existbetweenthetwo sections shown. In addition, EDP also opined that the proposed lot did not appear to contain sufficient area to construct a house, septic (primary and replacement), and a well. Specifically, in a letter dated March 10, 2022, EDP stated,
as follows: "Based on the wetlands information provided thus far, there is a limited area available for a septic system that meets all required town and state separation requirements. The map actually shows approximately 50% ofthe system not meeting the required buffers.
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### [* 4]The map shows a primary location for a proposed system based on a conventional system layout. The deep testpit and percolation test information provided
... suggest that due to seasonal water, a shallow fill system will be required. Due to the addition offill to construct a shallowfill system, a larger area is typically required for these type systems, and the separation distances are measured from the toe of the fill limits. Based on the limited area of building envelope shown (based onundocumentedwetlands) it would appear that the proposed lot does not contain sufficient area to construct a house, septic (primary and replacement) and a well, that would be compliant with all separation requirements." Priorto the publichearing, in a letter dated March 17, 2022, the Saratoga County Planning Board ("SCPB") opined thatthese concerns raised by EDP needed to be addressed to create a safe environmentfor theproposed single-family use. Althoughitfound thatno significantcounty-wide impacts existed, the SCPB nevertheless provided advisory comments with numerous concerns, including the following: "the odd shape ofthe proposed lot"; the creation ofa lot "with skewed boundary lines"; "the existence ofan overhead electrical transmission wire crossing the area of the proposed lot"; potential "safety issues [from the overhead wire] during and post construction ofthe proposed home"; and "the possible impacts to the existing wetlands and drainage corridor surrounding the proposed building envelope ofthe proposed home." The SCPB noted that "the proposed subdivisionappearsto beplacedin an areaofmarginallands thatwasprobably construed because of the need for road frontage" and that the applicant should "investigate possible alternative areasthatmaybe more suitabletobuilding a single-family homeonthe 66-acreparcel." On the day ofthe public hearing on the subdivision application, the petitioners' counsel provided a letter and documents responding to the comments submitted by EDP and the SCPB. Regarding the sight distance issue, the petitioners' counsel noted that a highway permit was previously issued inApril 2010 for a proposed driveway (never constructed) in connection with a prior (unapproved) subdivision application, and that the currentproposal requires the issuance of

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### [* 5]a highway permit from the Town Highway Superintendent prior to the issuance of a building permit. He further disputed that any basis existed to require anAASHTO analysis. In response to the wetlands issue, petitioners' counsel provided a letter response on the surveyor's stationary, indicating that the surveyor's staffdelineated the wetlands on September 1, 2021 (after the date on the 2021 map) and that the wetland boundary and stream location were accurately documented onthe subdivision map (datedAugust 27, 2021). In addition, in response to the septic issue, the petitioners' counsel submitted a letter from a professional engineer ("PE") who stated that the proposed septic system would be 37 feet by 67 feet (slightly smaller than the
area designated in the proposed plan); and that the system would be located at least 100 feet from the well, at least 10 feet from the property line, and at least 20 feet from the dwelling. Inhis letter, the PE asserted that the Department ofHealth Design Handbook did not require a 50% expansion
reserve or a 100% full replacement area. He opined in his letter that these were only suggestions (notrequirements) andthatthe location ofthe proposedonsite disposal system was "aviable code compliant option." The petitioners' counsel explained the proposal and these materials during the public hearing. Thereafter, a neighborthen made several comments. She statedthat arather large culvert exists in the area; that the water drains towards the proposed structures; and that the area is wet. The neighbor believed that proposed septic would be in an areathat had historically been used as
a small fishing pond. No other members ofthe public made any comments. The public hearing, however, was left open at the request ofthe petitioners' father. During the continuation ofthe public hearing, onApril 18, 2022, the petitioners' counsel provided a letter and additional materials to the Planning Boardto review and consider, including
a table from the Department of Health regulations, an excerpt from the Federal Highway

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### [* 6]Administrator's Manual, and several aerial images (from Google) depicting a portion of the property on several different dates. No members ofthe public offered any further comments. Nonetheless, the chairperson stated that they would ask the Town's designated engineer to review the new information from the petitioners' counsel and that the public hearing would be left open until the next meeting (May 16, 2022). 3 On or about May 4, 2022, EDP responded to the new informationprovided by petitioners' counsel. Regarding the sight distance issue, EDP continued to stand by its recommendation to require the petitioners to conduct an AASHTO analysis. EDP noted that it was "not provided a copy ofthe previously submitted subdivision proposal and cannot verify ifany action was taken
on that submittal (regarding the proposed driveway lot #1), or ifin fact a 'highway permit' was issued." EDP also noted that the Planning Board was not responsible for existing situations that may, ormay not comply withAASHTO, andthatitis "taskedwith assuringthat any newproposed lot created in the town will have safe ingress and egress onto existing roadways." Regarding the remaining issues, EDP further concurred with SCPB's comments and stated that it "would appear that there may be a better location on this large parcel to construct a new home, where the house may not be located on 'marginal lands."' On or about May 11, 2022, the petitioners' counsel provided the Planning Board with additional materials, including a letter from the petitioners' surveyor providing additional measurements and opinions related to the subdivisionproposal. The surveyor concluded (without identifying the precise location ofhis measurements) that the sight distance from the proposed

3 When petitioners' counsel asked if he could request that the public hearing be closed, the chairperson explained that it would not be prudent to close it because the engineering escrow account had not yet been funded and closing it would start the time for the Planning Board to render a decision on the application. The chairperson explained that in the past some applicants have refused to pay the engineering fees after receiving a decision. 7 

### [* 7]driveway was 482 feet in one direction (looking north) and 461 feet inthe otherdirection (looking south). Based on these measurements (and various assumptions set forth in the federal manual), thepetitioners' counsel allegedthatno safety issues existedbased onthe sightdistance. Regarding the elevation issue, the surveyor noted that the "existing topography withinthe building envelope
area (includingthe septic and well areas) is generally flat withintermittenthigh and lowvariations intopography that naturally occurin any landscape." He opinedthat in "the area ofboththe septic system and the well location, the elevation is approximately 490 feet." He opined that the "final location of the septic system and the well will be required to comply with health department regulations" and that "the proposed grading for the house that is located between the proposed septic system and well location will ensure that the septic system does not have a direct flow line to the proposed well." OnMay 16, 2022, the Planning Board continuedthe public hearing. After no one from the public appeared to speak, the Planning Board voted to close the public hearing. Thereafter, on June 15, 2022, the Charlton Environmental Conservation Commission ("ECC") provided its comments to the Planning Board. The ECC agreed with the SCPB's comments that the proposed subdivision appears to be placed in an area of"marginal lands" and that a more acceptable area might be found to subdivide 2 acres from the 66-acre property. The ECC stated that the "odd shaped lot results in the house, well, septic and driveway being tightly packed between a wetland area, the pond, a seasonal runoffarea and the existing driveway
...." The ECC noted that almost
no room existed "to relocate a well or septic system, ifever needed, and continue to meet the NY State health separationrequirements, orfor common add-ons to the house such as a deck, pool, or garage." The ECC also raised concerns about the wetlands, asserting that the Planning Board

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### [* 8]should protect all wetland areas with a 100-foot buffer regardless ofwhether any federal or state laws require such a buffer. At the next meeting on June 20, 2022, the Planning Board members explained that they had numerous concerns regarding the proposed subdivision. They commented on the problems created by the configuration ofthe proposed smaller lot; the limitations on building based on the wetlands, the pond, the stream, seasonal runoff, and the overhead power line; the lack ofsuitable land to relocate/replace the well or septic or accommodate common additions such as a deck or pool; the building limitations on the size ofthe house and the septic; the wetness ofthe property; the sight distance concern; the existence of a large culvert, which was reportedly four feet in diameter; the risk ofpotential flooding and erosion; the potential for well water contamination; the dangerposed by the overhead power line; and the limited setback distance ofthe proposed septic and house from the wetlands. Members further opined that a more acceptable area to subdivide could be found from the 66-acre parcel. Atthe June 20, 2022 meeting, the Planning Boardultimately votedto deny the application, providing numerous reasons inits written decision, whichwas filed the following day. Thereafter, the petitioners commenced this hybrid action-proceeding seeking to annul the Planning Board's determination, among other things. Threshold Procedural Issue Priorto addressing the substantive claims asserted inthis case, the Courtmustfirst address
a threshold procedural challenge concerning the contents of the administrative record. Specifically, the petitioners contend that the administrative record filed by the Planning Board contains several pages that are irrelevant to the CPLRArticle 78 claim; that several documents
were erroneously excluded from the administrative record; and that the certification for the record

9 

### [* 9]was insufficient. Based on these alleged deficiencies, the petitioners contend that they should be provided a defaultjudgment against the Planning Boardpursuant to CPLR 7804. The Court agrees that some of the record pages (pages 10-18) are not relevant to the Planning Board's denial ofthe subject application and therefore should not have beenincluded as partofthe administrative record. These documents include invoices, receipts, and correspondence from 2010 and 2011. They were apparently included as responsive to the other claims/issues in the case. Notwithstanding, their inclusion does not warrant the issuance ofa defaultjudgment against the Planning Board. Rather, the appropriate remedy wouldbe to disregard the documents when considering theArticle 78 claim and/or strike them from the administrative record.4 Further, to the extent that any materials were erroneously omitted from the record or that the original certification was missing any critical language, any alleged non-compliance was inadvertent and non-prejudicial. As such, any such defect should be disregarded as a mere irregularity (see CPLR 2001; 2101[f]; 7804[e]; Matter ofRobert E. Havell Revocable Trust v Zoning Bd. ofAppeals ofVil. ofMomoe, 127 AD3d 1095, 1096 [2d Dept 2015]; Matter ofCliff
v Kingsley, 293 AD2d 954, 955 [3d Dept 2002]). Indeed, nearly all the documents allegedly missing from the record have since been providedto the Courtby thepetitioners' counsel, and the Planning Boardhas since resubmitted an updated certification (by way ofaffidavit) inresponse to the petitioners' objectionto the language used. The Court now appears to have all the materials considered by the Planning Board during the administrative proceeding, with the sole exception being certain photographs that were apparently taken ofthe property during a site visit by one ofthe Planning Board members. The

4 As these documents are relevant to other issues in this case (i.e., bias and consulting fees), the Court will considerthem solely for these other issues. 10 

### [* 10]clerk/custodian for the Planning Boardhas explained in an affidavit that the photographs were not part ofthe official file and that she believes that the photographs were taken by a member ofthe Planning Board onher ownpersonal electronic device. While the Court would have preferred for the administrative record to include these photographs (as the meeting minutes reflect that the photographs were reviewed and discussed), they are not necessary for the Court to intelligently review the Planning Board's decision. The meeting minutes, for example, reflect that the parties did not rely on them in any significant
manner. Rather, the petitioners relied on aerial photographs from Google Earth (provided to the Court) and descriptions of the property based on personal observations. The Planning Board similarly did not place any significant weight on them; rather, it relied primarily on the maps, visual inspections, and the personal observations discussed during the proceedings. Given the circumstances, the Court finds that it has all the materials necessary to render a decision in this matter and that itmay proceedwithits review (seeArgyle ConservationLeague vTown ofArgyle, 223 AD2d 796, 798 [3d Dept 1996]; see also Iwan v Zoning Bd. ofAppeals, 252 AD2d 913, 914 [3d Dept 1998]; Scott v City ofBuffalo, 20 Misc 3d 1135[A], 2008 NY Slip Op 51738[U] [Sup Ct, Erie County 2008]). Further, the petitioners' reliance on Arnot-Ogden Mem. Hosp. v Axelrod, for the proposition that a defaultjudgment should be awarded in their favor, is misplaced (see 95 AD2d 947,947 [3dDept 1983]). Inthat case,therespondentrepeatedly andwillfully failed to meet court and statutory deadlines (see Arnot-Ogden Mem. Hosp., 95 AD2d at 947-949). In contrast, the allegednon-compliance inthis casewas notwillful. Nopriororderresolved the dispute ordirected compliance. Nor was there any pattern ofnon-compliance.

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### [* 11]CPLRArticle 78 Regarding the CPLRArticle 78 claim, the petitioners contend that the Planning Board's denial ofthe subdivision application was arbitrary and capricious, lacking in rational basis, and unsupported by evidence in the record. In reviewing a planning board's decision,judicialreview is limited in scope (see Sheer Pleasure Lingerie, Inc. v Town ofColonie Planning Bd., 251 AD2d 859, 861-862 [3d Dept 1998]; M & M Partnership v Sweenor, 210 AD2d 575, 576-577 [3d Dept 1994]). Aplanningboard is responsible for weighing the evidence and exercising its discretion in approving or denying approval to a subdivision plat (see M & M Partnership, 210 AD2d at 576- 577; Currier v Planning Bd. ofTown ofHuntington, 74 AD2d 872, 872 [2d Dept 1980]). Where the planning board's determination "has a rational basis supported by substantial evidence, a court should not substitute itsjudgment for that of [a planning board] when the [board] has not abused its discretion or acted arbitrarily" (M & M Partnership, 210 AD2d at 576-577; see Heller v Kabcenell, 126 AD2d 728, 728 [2d Dept 1987]). In such cases, the planning board's decision "mustbe upheld eventhough a contrary determination could be supported by the record" (Matter ofMLB, LLC v. Schmidt, 50AD3d 1433, 1436 [3d Dept 2008]). Here, the Planning Board's decisionhas arational basis supportedby substantial evidence. Prior to voting on the application, several members of the Planning Board articulated their
concerns that approval would not be part ofa plan for safe, orderly, and efficient use ofthe land. Asexplainedby its members, a significantportionofthe proposed2.01-acre lot included a narrow strip ofland that had limited access, which would require the landowner to cross the stream or obtain another property owner's permission to access the strip. This created problems for maintenance, the potential for confusion and future land disputes, and significantly reduced the size ofthe buildable area ofthe remainder ofthe 2.01-acre lot.

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### [* 12]In addition, the buildable area on the proposed 2.01-acre parcel was further constrained based on the physical condition ofthe land, including the location ofthe wetlands, the pond, the stream, seasonal runoff, andthe overheadpowerline. In fact, the proposedhouse, well, and septic
were all surrounded by water, creating health and safety concerns for the property, the occupants, and the public. Several Planning Boardmembers further opinedthattheproposal did notcontain sufficient land for the septic system, especially for its relocation ifit needed to be replaced. Members also commented on the physical limits preventing the owners and future owners from being able to accommodate typical expansions to the proposedhouse such as adeck orpool, or otherwise being able to expand the size of the septic system and/or the house in the future. A member also commented that the property was very wet and that she got wet feet when she visited the property in 2010. The chairperson, who visitedthe property inJune 2022, explained that the stream flowed into a culvert located eight or more feet below the road and that the culvert was reportedly four feet indiameter. He also agreed that sight distance for the proposed driveway was a problem and that a safety study should be performed by a licensed professional with traffic engineering expenence. Members also expressed concern regarding several other issues, including the following: potential flooding; erosion; the potential for well water contamination based on the landscape, which was described as sloping downward; the overheadpowerline that crosses a large portion of theproperty nearthe proposed building area; andthe limited distance betweenthe proposed septic and house from the wetlands. Members further opined that a more acceptable area to subdivide could be found from the 66-acre parcel.

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### [* 13]In the resolution denying the application, the Planning Board further articulated these rational reasons for the denial, concluding that the proposed subdivision violated the Town's Comprehensive Plan and Subdivision Regulations; that the Planning Board observed adverse and unfavorable conditions whenitvisitedthe site; andthatithadconcernsregardingthe sightdistance from the proposed driveway. Among other things, the resolution concludesthat the proposal fails to protect the wetlands; that the character ofthe land was poor and would not be used safely for building; that the subdivision posed a danger to health and flooding; that it was foreseeable that significant difficulties would arise from the topography and natural conditions; that the applicant failed to show that sufficient area existed for both a full replacement ofthe septic system and the septic expansion; that the applicant did notreliably show compliance withthe requirements ofthe New York Wastewater Treatment Standards (which require septic tanks to have a 50 foot setback and anabsorption field to have a 100 foot setbackto awatercourse orwetland); thatthe subdivision is a very poor design; that the long narrow strip ofland was a forced effort to shove 'the irregular lotinto the areato comply withthe minimum standards for lot sizes; thatthere is plenty ofland on the larger parcel to safely undertake a safe and compliant subdivision; and that the subject land
was subject to flooding and deemed as uninhabitable for residential occupancy. Inconnection with the Planning Board's visual inspection, the resolution further provides,
as follows: "Theboard's visual inspectionofthe property demonstratedthatthe property exhibited the following conditions and characteristics: a constrained proposed lot; a contrived lot configuration; marginal lands; essentially two (2) acres of wetlands constituting the proposed building lot; a large pond next to the proposed living, dwelling and septic areas, including a large pond adjacent to a proposeddivisionline. Atthepublichearing aneighbor spoke about a large culvert and stated that everything drains to the area where the residence is proposed, and particularly the septic. The septic is proposed in an area that has been a fishing pond. Ignoring the fact 14 

### [* 14]that the home and septic are proposed in the middle ofthe wet area ofthe property is turning a blind eye to what was observed on site. The improvement would be unsafe for the applicant or a future resident."5 Further, contrary to the petitioners' contention, the PlanningBoard's decision does notrest
ongeneralizedcommunity opposition. Rather, the decisionis rationally supportedby the Planning Board's discretion and commonsense judgment; the firsthand observations of its members discussed during the meetings; the historical facts surrounding the prior subdivisions; the statements made by the petitioners' father during the meetings; the firsthand observations discussed by a neighbor during the public hearing; the materials supplied by the petitioners; and the comments made by the Town's designated engineer, the SCPB, and the ECC, among other things (see**~** Michelson v Warshavsky. 236 AD2d 406, 407-408 [2d Dept 1997]; TunisHuntingtonDodge, Inc. v Horn, 29 AD2d 990, 991 [2d Dept 1968]). In addition, the decision is also rationally based on the petitioners' failure to adequately address several legitimate concerns related to the property's condition (see M & M Partnership. 210AD2d at576-577 [ drainage concerns]; Michelson, 236AD2d at407-408 [ flooding concerns]). Thepetitioners, for example, failed to adequately address the sight distance concerns relatedto the proposed driveway; the potential problems/risks based onthe limited buildable area; the potential problems based on the substantial amount ofwater on the property; the limited area available to replace or expand the proposed septic system; and the potential impacts that the proposed development would have onthe wetlands.

5 Substantial evidence does not appear to support the Planning Board's conclusion that the septic was "proposed in an area that has been a fishing pond." Nonetheless, the record reflects that the area was surrounded by water, that a large nearby pond existed, that the owner ofthe land desired to expand the pond area, that a second pond formed seasonally, that a four-foot-wide culvert ran through the area, and that the area was wet. 15 

### [* 15]This case is similarto M & M Partnership andMichelson. There, the petitioners'responses
were inadequateto address legitimate issues raisedregarding drainage and flooding. Based onthe petitioners' failure to address these legitimate concerns, the appellate courts heldthatthe denial of the applications had a rational basis supported by substantial evidence (see M & M Partnership. 210 AD2d at 576-577; Michelson, 236AD2d at 407-408). As in these cases, the petitioners here also failed to provide adequate responses to legitimate concerns. This failure leftthese health and safety concerns unaddressed and provided a rational basis for the denial of the subdivision application. The Planning Board also rationally considered the lack ofavailable area (and the lack ofa concrete plan) for future expansion, repair, and replacement ofthe septic system. Even if such planning was only a suggestion by the NewYork Department ofHealth ("DOH") (as asserted by the petitioners' expert), the DOH's Design Handbook (Section 4.3 at page 24) nonetheless recommends that a landowner plan for future expansion or repair ofthe absorption area and for future failure, especially as the system has a limited lifespan.6 In addition, while technology and other mitigation measures "may be available to provide viable alternatives to reserving land for future possibility ofsystem expansion or repair" (Design Handbook, Section 4.3), the petitioners failed to provide any plans discussing any such alternatives. Further, contrary to the petitioners' contention, the Planning Board properly applied the standards set forth inthe TownLaw, the Town'sregulations, theTowns' Comprehensive Plan, and

6 The Design Handbook provides in part, as follows: "For design and planning purposes, an additional useable area of50% ofthe absorption area should be reserved for future expansion or repair ofthe absorption area. Whenever possible, it is recommended that an area equal to 100% of the required absorption area be reserved to facilitate full absorption system replacement" (Section 4.3, at page 24). 16 

### [* 16]theTown's SubdivisionApplication and Review Guide. The Town Law, for example, emphasizes that the purpose of the subdivision review is to afford "adequate facilities for the housing, transportation, distribution, comfort, convenience, safety, health and welfare" of the local population; and that the planning board must "require that the land
... be ofsuch character that it
canbeused safely for buildingpurposes withoutdangerto healthorperil from fire, flood, drainage
orother menaceto neighboring properties orthe public health, safety and welfare" (Town Law§§ 276[1]; 277[1]), Inaddition, theTown'sregulationsrequirethePlanningBoardto protecttheTown'snatural resources; preserve the Town's rural character; and considerthe "safe, orderly, and efficientuse of land and/or development" (Town's Subdivision Regulations, Section I). The regulations further specify that the enumerated standards are "minimum requirements" (Section X); that land to be subdivided "shall be of such character that it can be used safely for building purposes without danger to health or peril from fire, flood, or other menace" (Section X [B][l]); and that the Planning Board should consider the "foreseeable difficulties" in constructing a building based on the "topography or other natural conditions" ofthe land (Section X [F]). The regulations further prohibitthe Planning Boardfrom allowing lands subjectto flooding ordeemedto be uninhabitable from being developed (Section X[G][4]). The Town's Comprehensive Plan further identifies the preservation of groundwater, streams, andwetlands as a major goal for the Town (Comprehensive Plan, Goal 2, atpages 8, 10). It provides that the Town should place "more emphasis on siting new buildings to include
... setbacks from streams and wetlands" (Comprehensive Plan, Goal 2, atpage 10). The Plan further recommends considering the development of guidelines for applicants in connection with the

17 

### [* 17]review process to encourage the use of "setbacks from streams, lakes, and wetlands to protect water quality" (Comprehensive Plan, Goal 6, Recommendation 18[d], at page 16). In addition, the Town's SubdivisionApplication and Review Guide provides, as follows: "Ifa subdivisionplanconformsto the Zoning Ordinance, it does not mean that the proposed plan will necessarily be approved. The Planning Board considers many issues, including but not limited to public safety, traffic, wetlands, water supply, possible effects on neighboring properties, sanitary waste disposal, storm water management, etc. The Planning Board will, however, attempt to work with an applicant to create a subdivision consistent with the purpose of the Zoning Ordinance and Subdivision Regulations" (Town of Charlton Subdivision Application and Review Guide, Purpose ofSubdivision Review, at p. 2). These authorities provided ample support for the Planning Board's consideration ofthe proximity betweenthe proposed development and the water/wetlands, notwithstanding the lack of any specific distance required by any law/regulation.7 As explained above, the Town's Comprehensive Plan required the Planning Board to consider and encourage the inclusion of a setback. In addition, the Town Law and the Town's regulations required the Planning Board to consider such proximity based on the potential health and safety risks implicated by developing landnearbywater/wetlands. Indeed, as apractical matter, building ahouse, well, and septic system surrounded by water, without a sufficient setback, can create significant health and safety issues from poorplanning. The Court also disagrees that the Planning Board's setback policy is arbitrary. When possible, the Planning Board requires a minimum 100-foot setback from any waterbody, whether

7 The record indicates that there is no specific setback distance required by any law/regulation. The respondents do not dispute that the Town and the U.S. Army Corps of Engineers do not mandate a specific setback distance for wetlands. Moreover, while the New York Department of Environmental Conservation (DEC) imposes a 100-foot buffer for wetlands, the DEC opined in a letter (dated March 15, 2022) that the subject wetlands were not within itsjurisdiction. As such, the DEC buffer does not apply to the water/wetlands at issue. 18 

### [* 18]a wetland, stream, orpond. This is not an arbitrary distance, butratherthe same distance imposed by the State for the wetlands it regulates. Such a policy addresses the health and safety concerns created by wetlands, while imposing little, ifany, burden on the landowner. In contrast, where insufficient land exists, the Planning Board'spolicy is flexible. In such cases, the Planning Board does not impose a 100-foot setback requirement but rather exercises its discretion to determine whether such a setback is necessary for health and safety reasons, as it did in this case. It was also not irrational for the Planning Board to require the petitioners to address its legitimate concerns despite the petitioners' insistence that other departments/agencies would address these concerns in the future. The lack of a concrete plan to adequately address these various concerns could result in several additional problems in the future. Assuming for instance that any ofthe various departments/agencies denied the required permits/approvals, this would have resulted in a subdivision failure. If the petitioners' approach had been followed by the Planning Board, such poorplanning could have ultimately resulted in the creation oftwo inferior parcels, leaving the larger parcel with less road frontage and the smaller parcel with significant developmentproblems. In addition, the petitioners also allege that the Planning Board's conclusions conflict with theZBA's conclusionthatthe variance would "resultin abuildable lot.'' Aside from the vagueness ofthis statement, the ZBA did not resolve the issues related to the wetlands and the health and safety ofthe proposed structures. To the contrary, the ZBAmade it clear that the Planning Board
wasresponsiblefor determiningthese issues anddeciding whetherto approve/deny the subdivision application. In addition, no conflict exists given that the record before the Planning Board was
more developed than the record before the ZBA.

19 

### [* 19]Similarly, the Court is not persuaded that the Planning Board's decision is irrational given itsnegative declarationfrom February 21, 2022. Thepetitioners'contentionto thecontrary ignores the notation on the SEQRA form, stating: "This Board needs to see the [applicants'] plan to mitigatewetlandimpactsbeforeit canmake afinal determinationon [the] project." Thepetitioners further ignore the different standards/factors applicable to a determination of significance as opposedto a subdivisionreview. They also incorrectly assumethatthe Planning Boardwas bound by its prior SEQRA determination throughout the course of its subdivision review, which is contrary to the DEC regulations (see 6NYCRR 

### § 617.7 [e], [f]). Further, the record does not support the petitioners' accusations ofbias. For example, in accusing the Planning Board ofselectively enforcing the regulations against their family and the property, the petitioners cite generally to the denial ofa prior subdivision application for the same property in 2011. Yet, the record materials reflect that the Planning Board granted several prior subdivisions for the property/family and that the prior denial concerned alleged contamination, among otherthings. The Court also disagrees that the Planning Board engaged in a scheme to increase the petitioners' costs by referring the matter to the ZBA, providing negative comments/objections duringtheZBAproceedings, andrequiringthepetitionersto provide information. Whilethe Court itselfwould not have referred the matter to the ZBA (given the measurements from the survey), the referral was nonetheless rational based on the alleged discrepancy between the tax roll map andthe survey. ThePlanning Board'scomments/objectionswere also authorized underTownLaw §277(6). Inaddition, the materials and informationrequiredby the Planning Boardwere standard requests andrelated to the safe, orderly, and efficientuse ofthe property.

20 

### [* 20]Moreover, while the Planning Boardinitiallyrecommendedthatthe petitionersrevise their plans, andthen later objectedto therevisedplan, the Planning Board'srecommendationwas based
onthe limited information it possessed at the time. As the record materials reflect, the Planning Board made the recommendation before the wetlands had been delineated and before they were provided with sufficient informationto fully evaluate the facts. For all these reasons, the Court denies the reliefrequested in the CPLRArticle 78 petition and dismisses the proceeding. Notwithstanding, the petitioners may reapply for subdivision approval. If desired, they may attempt to correct the deficiencies in their application or seek approval for the northern proposed lot. The Court would caution against another referral to the ZBA for a road frontage variance on either ofthese two proposals, as the ZBAhas already made findings that would render another referral irrational.8 Similarly; the Court would also caution against denying the northernproposed lot based solely on the proposed construction ofa house in front ofthe farmhouse. While the issue was not fully developed during the prior proceeding, the regulation relied upon by the Planning Board concerns lot depth and does not strictly prohibit building a house in front ofanother house, as the Planning Board's chairperson opined.9 Such an interpretation could also be considered irrational given that it would unnecessarily prohibit the development ofa single-family residence based onthe unfounded fear thatthe development could result in the urbanization ofthe area, despite theproposed lot's 2.01-acre size and the existence of the farmhouse and barn behind the proposed house.

8 As explained above, the ZBA has already granted a variance for the southern proposed lot. In addition, the ZBA's variance indicatesthatthetotal road frontage is approximately 401 feet, which necessarily rejected the accuracy ofthe measurements onthe tax roll map.

9 The Planning Board relied on Section X (F)(l) ofthe Subdivision Regulations, which provides inrelevant part, as follows: "Lots should not be ofsuch depth as to encourage the later creation of a second building lot at the front or rear." 21 

### [* 21]Declaratory and Injunctive Relief In addition to the CPLRArticle 78 claim, the petitioners seek declaratory and injunctive relief. Onthese claims, theycontend that the Planning Boardfailed to timely render a decision on the subdivision application; that the Planning Board is not authorized to impose a setback requirement; and that the Planning Board may not charge applicants for consulting fees. Town Law § 276 The Court disagrees with the petitioners' contention that they are entitled to subdivision approval based on the Planning Board's alleged failure to issue a decision within 62 days ofthe publichearing. As their support,thepetitionersrely uponaprovisioninTownLaw§ 276requiring
a decision on a final plat "within sixty-two days after the date ofthe public hearing" (see Town Law §276[6] [ d] [i] [3] [a]), as well as anotherprovisionmandatingthata "finalplat shallbe deemed granted approval" where "a planning board fails to take action
... within the time prescribed therefor" (see Town Law§ 276[8]). Critically,thepetitionersmiscalculatethe dateuponwhichto runthe sixty-two days. While the statute references "the date ofthe public hearing," the preceding language inthe statute (when read as a whole) clarifies that the time periodruns after the public hearing is closed and that such closurerequires amotion. Specifically,theprecedinglanguageprovides, as follows: "[t]hehearing
onthe final plat shall be closeduponmotion ofthe planning board within onehundredtwenty days after it has been opened" (see Town Law § 276[6][d][i][2]). As the motion to close the hearing
was not made and approved until May 16, 2022, the time to render a decision did not beginto run until such time. The Planning Board therefore complied with the plain language ofthe statute when it issued a decision in June 2022, well within this 62-day period.

22 

### [* 22]Further, to the extent that the petitioners contend that the Planning Board acted arbitrarily in failing to close the public hearing onApril 18, 2022 (less than 120 days after it was opened), this isnota legitimatebasisto declare the subdivision application approved ondefaultunderTown Law§ 276(8), as such a remedy is not authorized inthis case by the plain language ofthe statute. As discussed above, the statutory basis for a default approval would require a finding that the planning board "fail[ed] to take action" "within the time prescribed therefor." Again, as the applicable time period for rendering a decision is statutorily measured from when the public hearing is closed, the Planning Boardtook action "withinthe time prescribedtherefor." TownLaw § 276(8) therefore does not provide any support for a default approval. Wetland Policy As discussed above, the Planning Board acted rationally when it considered the proximity of the proposed development to the water/wetlands. Given that this issue has already been adjudicated on the Article 78 claim (see above), there is no need for any declaratoryjudgment on this issue (see James vAlderton DockYards, Ltd., 256 NY 298,305 [1931]; see also CPLR 3001; EquitableLeasing, Inc. v Maguire, 36AD2d 1020, 1020 [ 4thDept 1971] ["Thetrial courtproperly exercised its discretion in declining to entertain this declaratoryjudgment action since the parties have other available reliefby existing remedies at law."]). 10 In addition, given that the Planning Board properly exercised its discretion on this issue, the petitioners have not faced any actionable harm from this policy. It is also too speculative to

10The discretionary nature ofthe policy and its fact-specific nature also render it inappropriate for declaratory relief (see CPLR 3001; NewYork Public Interest Research Group, Inc. v Carey, 42 NY2d 527, 531 [1977] ["a request for a declaratoryjudgment is premature ifthe future event is beyond the control ofthe parties and may never occur"]; Manuli v Hildenbrandt, 144 AD2d 789, 790 [3d Dept 1988]). 23 

### [* 23]conclude that the policy will be arbitrarily applied against them in the future. Accordingly, the request for injunctive reliefonthe setback issue is denied. ConsultingFees The petitioners also assert that the Planning Board improperly required them to pay consulting fees to the Town's designated engineer in connection with the subdivision review. In response, the respondents contend that the fees were proper and authorized. They have provided
a copyofalocal law, a fee schedule, aTownBoardresolution, and othermaterials. Thepetitioners dispute that the local law applies to them and contend that the fee procedure is unreasonable. Regarding the request for a declaratory judgment, this remedy is discretionary and "dependent upon facts and circumstances rendering it useful and necessary" (James, 256 NY at 305). "Where there is no necessity for resorting to the declaratory judgment it should not be employed" (id.; see also CPLR 3001; Equitable Leasing, Inc., 36 AD2d at 1020). Here, the Court does not considerthe use ofa declaratoryjudgment as useful ornecessary for the issue presented. Inparticular, the petitioners could have demanded and sought a refund of the $850.00 paid (see~Town Law§§ 118 & 119; Matter ofHarriman Estates atAquebogue, LLC v Town ofRiverhead, 151 AD3d 854 [2d Dept 2017]; Wildlife Associates v Town Bd. of Southampton, 141 AD2d 651 [2d Dept 1988]). The availability ofthis alternative remedy renders
a declaratoryjudgment unnecessary (see James, 256 NY at 305; see also CPLR 3001; Equitable Leasing, Inc., 36 AD2d at 1020).11 The declaratory judgment claim is also overly broad and

11 The Court also notes that the cause ofaction seeking declaratory reliefdoes notrequest a refund orany monetary damages. Nonetheless,the amountincontroversybetweenthepartiesisrelatively minor ($850.00) and therefore should be resolved in small claims court. The Court would in fact convert the claim into a claim for a refund and transferthe claimto small claims court but for the potential objection from the respondents thatthe claim mustbepursuedpursuantto CPLRArticle 78 and that suchproceedings mustbe litigated in Supreme Court (see CPLR 7804 [b]).
24 

### [* 24]improperly seeks to obtain reliefthat would extend well beyond a declaration ofonly the rights and controversy between the parties (see CPLR 3001). Moreover, no evidence exists that the PlanningBoardwill declineto reviewanyfuture applications ofthepetitioners (or suspendreview) based ontheir non-payment ofany future fees. Any suchconductwould subjectthemto additional litigation (another CPLRArticle 78 proceeding) and could result in a default approval based on any such delay. The Court further declines to award any injunctive relief. To be entitled to a permanent injunction, aplaintiffis "requiredto establishnotonly irreparable harm, but also the absence ofan adequate legal remedy" (McDermott v City ofAlbany, 309AD2d 1004, 1005 [3d Dept 2003]; see McNeary v Niagara Mohawk Power Corp., 286 AD2d 522,525 [3d Dept 2001]). Even assuming for the sake of argument that the fees were improper, there is no basis to conclude that the petitioners face any irreparable harm or that they lack an adequate remedy at law. The Town (a party to this action) could also render such future disputes moot by simply amending the current lawto address the petitioners' concerns. The Court has further considered whether it should convert these causes of action for declaratory/injunctive reliefinto a claim pursuant to CPLRArticle 78 for a refund ofthe $850.00 paid for consulting fees (see CPLR 103 [c]). Based on the circumstances, the Court does not consider such a conversion appropriate given the relatively small monetary amount involved, the petitioners' decision not to pursue a refund as a direct claim in this action (as opposed to merely requesting a refund as incidental reliefonthe injunction claim), and the need for newpleadings, a
new administrative record, and further proceedings to frame the issues and adjudicate the merits ofany direct claim for a refund.

25 

### [* 25]Accordingly, based on the circumstances, the Court finds that it is appropriate to dismiss the claims seeking declaratory and injunctiverelief, withoutprejudiceto any rights the petitioners may have to commence an appropriate proceeding for a refund (see CPLR 103[c]).

The Courthas consideredthepetitioners' remaining contentions and finds them to be moot and/or notpersuasive. 

### It is therefore, ORDRED, ADJUDGED, and DECREED, that on the cause of action seeking a declaratoryjudgmentregarding the Planning Board's alleged failure to close the public hearing on April 18, 2022, the Court finds that petitioners did not obtain, and are not entitled to, a default approval oftheir application underTown Law§ 276(8); and it is further ORDRED, ADJUDGED, and DECREED, that the causes ofaction seeking injunctive and declaratory reliefregarding the charges imposed on the petitioners for the consulting fees are hereby DISMISSED, without prejudice; and it is further ORDRED,ADJUDGED, and DECREED,thatthe petitioners'request for reliefpursuant to CPLRArticle 78 is DENIED withoutprejudice to thepetitioners' rightto file and pursue a new application for subdivision approval; and it is further ORDRED,ADJUDGED, and DECREED that the remainder ofthe petition/complaint is hereby DISMISSED. Dated: April 29, 2024 at Ballston Spa, NewYork Enter.

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