IN RE: Jerome LINDBERG and Benita Rogers (2007)

Petitioners-plaintiffs commenced this “combined” CPLR article 78 proceeding and declaratory judgment action seeking, inter alia, a declaration that Manlius Town Code § 127-5 is invalid “insofar as it purports to allow ‘division of land’ in a manner inconsistent with Article 16 of the Town Law.” As Supreme Court properly determined, Manlius Town Code § 127-5 does not violate Town Law § 276(4)(a) by excluding from the definition of “ subdivision” a division of land consisting of the adjustment of existing lot lines, even when only one of those lots is within an approved subdivision.   The statute authorizes towns to determine, by defining the term “subdivision,” those divisions of property that require subdivision approval (see generally Matter of Esposito v. Town of Fulton Planning Bd., 188 A.D.2d 779, 591 N.Y.S.2d 254;  Delaware Midland Corp. v. Incorporated Vil. of Westhampton Beach, 79 Misc.2d 438, 440, 359 N.Y.S.2d 944, affd. 39 N.Y.2d 1029, 387 N.Y.S.2d 248, 355 N.E.2d 302;  Rice, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 61, Town Law § 276, at 59).   The court erred, however, in dismissing that part of the petition-complaint seeking a declaration (see Village of Webster v. Monroe County Water Auth., 269 A.D.2d 781, 783, 703 N.Y.S.2d 648), and we therefore modify the judgment accordingly.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the provision dismissing that part of the petition-complaint seeking a declaration and granting judgment in favor of respondents-defendants Town of Manlius Planning Board, Albert Hanzalik and Town Board of the Town of Manlius as follows:

It is ADJUDGED AND DECLARED that Manlius Town Code § 127-5 is valid and as modified the judgment is affirmed without costs.

MEMORANDUM: