Town of Tully Planning Board, Respondent. v. << (1997)

Respondent granted preliminary approval for 10 of 25 lots within petitioner's proposed subdivision, but made approval of the remaining lots “contingent upon a second access for those lots to a public highway other than the proposed access” on Gatehouse Road. Petitioner commenced this CPLR article 78 proceeding seeking to annul respondent's determination conditioning the approval of lots 11 through 25 upon a second access road.   Supreme Court dismissed the petition.   We reverse.

 A court will not set aside a planning board's determination to approve or disapprove a subdivision if it is rational and supported by substantial evidence (Matter of M & M Partnership v. Sweenor, 210 A.D.2d 575, 576, 619 N.Y.S.2d 802).   A planning board may properly consider the impact of a proposed development on surrounding roads and the impact on traffic patterns as they relate to the Town's safety and general welfare (Matter of Pearson Kent Corp. v. Bear, 28 N.Y.2d 396, 399, 322 N.Y.S.2d 235, 271 N.E.2d 218;  see, Town Law § 276[1] ).   Although a planning board may consider the impact on traffic patterns and deny approval of the subdivision or condition approval on site plan modifications (see, Matter of Sepco Ventures v. Planning Bd., 230 A.D.2d 913, 646 N.Y.S.2d 862;  Matter of Janiak v. Planning Bd., 159 A.D.2d 574, 552 N.Y.S.2d 436, lv. denied 76 N.Y.2d 707, 560 N.Y.S.2d 989, 561 N.E.2d 889), such condition or denial of the subdivision “must be premised on clear findings of deleterious changes that adversely affect the adjoining area” (Matter of Van Euclid Co. v. Sargent, 97 A.D.2d 913, 915, 470 N.Y.S.2d 750;  see, Matter of Sanford v. Whearty, 216 A.D.2d 399, 400, 628 N.Y.S.2d 349;  Matter of Eastern N.Y. Props. v. Cavaliere, 142 A.D.2d 644, 646, 530 N.Y.S.2d 842).

 Here, respondent failed to make findings supporting its determination that development of lots 1 through 10 was acceptable but that, absent a second access, development of lots 11 through 25 was unacceptable.   The absence of such findings and the inadequacy of the evidence in the record to support respondent's determination requires vacatur of that determination and remittal of the matter to respondent for a hearing, proper findings and a new determination (see, Matter of Genesee Farms v. Scopano, 77 A.D.2d 784, 785, 431 N.Y.S.2d 219;  Matter of Hobbs v. Albanese, 70 A.D.2d 1049, 1050, 417 N.Y.S.2d 556;  Matter of Parmadale Dev. v. Planning Bd., 35 A.D.2d 904, 316 N.Y.S.2d 842;  see also, Matter of Swan v. Depew, 167 A.D.2d 835, 836, 561 N.Y.S.2d 940;  Matter of Van Euclid Co. v. Sargent, supra, at 915, 470 N.Y.S.2d 750;  see generally, 2 Anderson, New York Zoning Law & Practice, § 26.20 [3d ed] ).

Judgment unanimously reversed on the law without costs and matter remitted to respondent for further proceedings.

MEMORANDUM: