NANCY FUNT BARBARA SPONDER v. TOWN OF PLEASANT VALLEY JOHN BAXTER TOWN OF PLEASANT VALLEY HIGHWAY SUPERINTENDENT (2024)

The following papers were read and considered on this petition seeking the annulment of Resolution No. 1011/2023 adopted by Defendant Town of Pleasant Valley Town Board on October 16, 2023 (the "October 16, 2023 Resolution" or "Resolution"):

Document: NYSCEF Doc. No(s).:

NOTICE OF PETITION 24

PETITION and EXHIBITS A—V 1—23, 28

MEMORANDUM OF LAW 29

ANSWER IN SPECIAL PROCEEDING 48

CERTIFIED TRANSCRIPT OF PROCEEDINGS 49

MEMORANDUM OF LAW IN OPPOSITION 50

REPLY MEMORANDUM OF LAW 54

ATTORNEY REPLY AFFIRMATION and EXHIBIT W 55—56

EXPERT REPLY AFFIRMATION 57

WITNESS REPLY AFFIRMATION 58

BACKGROUND

This is a hybrid civil action and special proceeding challenging Respondents' denial of an application for a variance from driveway sightline distance requirements set forth in § 46-3(A) of the Code of the Town of Pleasant Valley ("Town Code") and of an application for an open development area ("ODA") pursuant to Town Law § 280-a. Petitioners filed the two applications in furtherance of a plan to develop vacant land they own in the Town of Pleasant Valley (the "Town") into three residential lots containing single-family homes. The property presently consists of four adjoining parcels, two of which front on Martin Road, one of which fronts on Barbara Lane, and the fourth is landlocked. Petitioners propose to reconfigure the four existing lots into three lots, and the homes to be built thereon are proposed to be served by a common driveway entering onto Barbara Lane, which is a Town road.

As the proposed single-family homes would not separately have direct access onto a public roadway, but would instead share a single driveway with easement rights, it is not disputed that this configuration requires approval by the Town Board as an "open development area" pursuant to Town Law § 280-a(4). As to the proposed driveway, Town Code § 46-3[A] requires, generally, that it "shall have an unobstructed sight distance of 300 feet minimum to 400 feet maximum, in either direction, to be determined by posted speed limit." It is not disputed that the proposed driveway location does not meet this requirement, and that a "variance" must be obtained from the Town Board pursuant to Town Code § 46-3(L). On or about November 18, 2022, Petitioners submitted applications for both items to the Town Board.

The Town Board opened a public hearing on the applications at its meeting held on February 6, 2023. The public hearing was continued at the February 27, April 17, June 21, and August 21, 2023 meetings, at several of which members of the public spoke in opposition to Petitioner's development plan. In advance of the first public hearing session, Defendant John Baxter, the Town Highway Superintendent ("Defendant Baxter" or the "Highway Superintendent"), submitted a letter to the Board stating, in full:

Concerning the Bodner Subdivision on Barbara Ln. I cannot sign off on the proposed shared driveway for the Barbara Ln subdivision. First it is unreasonable to believe, and there is no basis to assume that the average speed on Barbara Ln would be 15mph. The posted speed limit on Barbara Ln is 30[m]ph, and the Dutchess County DPW standard for driveway sight Distance is 335 [feet] and a stopping distance of 200 [feet]. While I understand that there are several driveways that do not meet that standard on both Barbara Ln and Martin Rd., many were installed in the 50's and 60's. When traffic in Pleasant Valley was much less, vehicles were slower, and years before the Town Highway sight distance for driveways was put into effect.

Driveway sight distances are based on the calculated safe stopping sight distance and therefore should not be compromised[.]

In late February and early March of 2023, Defendant Baxter collected traffic counts and speed data on Barbara Lane. He emailed the speed data to the Town Board members on March 10, noting, "[a]s you can see, the average speed is around 20mph."

On April 13, 2023, the Town Planning Board submitted a letter to the Town Board stating, in relevant part:

The Town Board requested a recommendation from the Planning Board with respect to the application for a waiver of the minimum site [sic] distance requirement for a shared driveway entrance on Barbara Lane for the Bodner Subdivision. After discussion and consultation with the Planning Board Engineer, Greg Bolner, the recommendation of the Planning Board is that minimum safety requirements would not be met with a common driveway entrance as proposed on Barbara Lane; the site [sic] distances are inadequate and a driveway for three houses so close to existing houses would create a hazard. The Planning Board concurs with the Engineer that a common driveway entrance from Martin Road could be designed with more reasonable safety precautions.

Petitioners thereafter retained an engineering firm to perform a traffic study. Petitioners' engineers submitted a report dated May 8, 2023, which Petitioners' counsel shared with the Town Board on June 9, 2023. Petitioners' engineers' conclusions included:

Traffic volume data . . . indicates that the daily traffic volumes on Martin Road are eight times higher than the daily traffic volumes on Barbara Lane. The volume data collected along Barbara Lane as part of this study is corroborated by the volume data collected by the Town of Pleasant Valley Highway Superintendent. Additionally, Barbara Lane qualifies as a low-volume roadway according the AASHTO [American Association of State Highway Transportation Officials] definition in the Guidelines for Geometric Design of Low-Volume Road, 2019. The location of the driveway on Barbara Lane is in keeping with best practices to have a proposed driveway on the lower volume roadway if the option is available. Given that the volumes are lower on Barbara Lane, it can be concluded that there would be less interaction with existing traffic and therefore result in fewer potential conflicts.

There is no posted speed limit on Barbara Lane, so the Town speed limit of 30 miles per hour is assumed. . . . The collected data indicated that operating speed for the eastbound approach to the driveway was between 18 and 31 miles per hour, and the operating speed for the westbound approach was 23 miles per hour.

The sight distance evaluation found that the available intersection and stopping sight distances do not meet the Town of Pleasant Valley requirements for a new driveway. However, they do meet or exceed the recommended sight distance for a low-volume roadway such as Barbara Lane according to the AASHTO publication Guidelines for Geometric Design of Low-Volume Road, 2019, which is an industry-standard publication.

Based upon the opinion that Barbara Lane qualifies as a "low-volume road," and applying the observed average speed of approximately 25 miles per hour, the engineers further opined that only 115 feet of sight distance from the proposed driveway would be required to meet AASHTO safety standards, and that the location of the proposed driveway met that standard in both directions.

The Town Board thereafter submitted Petitioner's traffic study to its own consulting engineers. In a memorandum dated July 28, 2023, the Town Board's engineers stated:

In conclusion, [Petitioners' engineering firm] has identified that the minimum sight distance as provided by AASHTO is only 115 ft. Sight distance diagrams that have been supplied show that the minimum distance is met in both directions. The minimum distance is less than the Town code of 300-ft however, the Applicant had done their due diligence to identify this as a low-volume roadway which is appropriate for consideration of a variance.

On the afternoon of September 18, 2023, the Town Board's engineers added, in response to an inquiry from the Town attorney, that at 30 miles per hour on a low-volume roadway the required sight distance would be 135 feet, pursuant to the standards applied by Petitioner's engineers.

In the evening of September 18, 2023, the Town Board held a final meeting on Petitioners' applications. The Board voted four to one against granting the requested sight distance variance. Based on that denial, no vote was taken on Petitioners' ODA application. The Board subsequently issued the October 16, 2023 Resolution denying the applications, which contained the following findings:

WHEREAS, the Town Board, at its September 18, 2023 meeting, duly considered all of the submissions by [Petitioners]; [their] attorney; [their] engineering expert; and the recommendation of the Town's Highway Superintendent; Town Engineer and the Town Planning Board; and

WHEREAS, one Town Board member, Councilman O'Hanlon opined that he had no objection to the granting of the area variance, but the four remaining members of the Town Board were of the opinion that the area variance should be denied mainly for public safety considerations; and

WHEREAS, two members of the Town Board, at the September 18, 2023 meeting, noted that they were personally familiar with Barbara Lane and had observed traffic on Barbara Lane at various times, including at rush hour, and at rush hour, the traffic on that road substantially increased, as well as the speed of vehicles travelling on that road, which appear to be using Barbara Lane as a shortcut to North Avenue; and

WHEREAS, the majority of the Town Board, by consideration of the benefit to [Petitioners] if the variance is granted as weighed against the detriment to the health, safety and welfare of the neighborhood or community by the granting of the variance, determined that the detriment to the health, safety and welfare of the neighborhood or community by the granting of such variance outweighs the benefit to [Petitioners] if the variance is granted, by application of the following factors:

1. Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by granting an area variance.

The Town Board finds that the granting of the variance will create an unreasonable safety hazard and detriment to the property owners and their families whose houses border on Barbara Lane, especially during times of rush hour traffic, which will create a detriment to the properties and residences on the properties and their children and potentially create a traffic hazard on Barbara Lane.

2. Whether the benefit sought by the applicant(s) can be achieved by some method, feasible for the applicant(s) to pursue, other than an area variance.

The applicant has not demonstrated to the Town Board that a shared driveway could not be created to access the three proposed residential lots on Martin Road with less of an impact on safety as noted by the Planning Board or by reducing the configuration or the size of the subdivision.

3. Whether the requested area variance is substantial.

The Town Board has determined that, by application of the variance sight distance standards as set forth by the Code, rather than the standards set forth by AASHTO, the variance from the 300 foot requirement contained in the Town Code, is, in fact, substantial, especially in that the low volume roadway AASHTO standards can only be met applying the 25 mph speed limit rather than the posted speed limit of 30 mph.

4. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.

For reasons stated in consideration in numbers "l ", "2" and "3", the reduction of the sight distance requirements in accordance with the AASHTO standards and application of a 25 mph design speed instead of by application of the Town Code and the 30 mph speed limit, will, in fact, have the potential to create an adverse effect or impact on the physical conditions in the neighborhood[.]

5. Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Board, but shall not necessarily preclude the granting of the area variance.

The Town Board determines that to the extent that the 300 to 400 foot maximum standard adopted by the Town in 2001, subsequent to [Petitioners'] ownership of the property, that the difficulty was not, in fact, self-created.

[emphasis in original].

Petitioners commenced this hybrid proceeding on November 14, 2023 asserting three causes of action under CPLR article 78 (first through third causes of action) and two causes of action for declaratory relief (fourth and fifth causes of action). Prior to answering the petition, Respondents move to dismiss the third, fourth, and fifth causes of action. On April 22, 2024, the Court issued a decision and order granting Respondents' motion to the extent of dismissing the third and fifth causes of action. The parties thereafter stipulated to have the Court render a decision on the first and second causes of action under CPLR article 78 prior to the conduct of discovery on the remaining declaratory judgment cause of action for regulatory taking, which procedure was approved by the Court on May 10, 2024. Accordingly, the following discussion only addresses the merits of Petitioners' first two causes of action.

DISCUSSION

Petitioners' first cause of action alleges that the Town Board's determination to deny the application for a sight line variance from the 300 feet required by the Town Code due to public safety concerns was not supported by the evidence and was arbitrary and capricious. Petitioners' second cause of action alleges that the Town Board's determination to deny the application for an open development area due to a lack of safe access to the proposed dwellings was not supported by substantial evidence, and was also arbitrary and capricious. In opposition, Respondents argue that their determinations were based upon the Town Code, the opinions and findings of the Highway Supervisor and the Town's consulting engineers, and the personal observations of certain Board members, and that those determinations are therefore entitled to deference. Respondents further argue that their determinations were not based solely on generalized community opposition, and that they were not required to adopt the findings of Petitioners' engineers.

CPLR 7803(3) provides, in relevant part: "The . . . questions that may be raised in a proceeding under [CPLR article 78] are . . . whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion[.]" A determination is arbitrary and capricious or an abuse of discretion "when it is taken without sound basis in reason or regard to the facts" (Matter of Sternberg v NY State Off. for People with Dev. Disabilities, 204 AD3d 680, 682 [2d Dept 2022] [internal quotation omitted]), or is "unreasonable, irrational or indicative of bad faith" (Matter of Zutt v State, 99 AD3d 85, 97 [2d Dept 2012] [internal quotation omitted]).

The parties assert that the standard of review governing the grant of an area variance by a zoning board of appeals applies to Petitioners' application for a sight line "variance."¹

[L]ocal zoning boards have broad discretion in considering applications for area variances and the judicial function in reviewing such decisions is a limited one. Courts may set aside a zoning board determination only where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure. A determination of a zoning board should be sustained on judicial review if it has a rational basis and is supported by substantial evidence.

(Matter of Pecoraro v Bd. of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004] [internal citations omitted]). In considering whether to grant an area variance, a board "must weigh the benefit of the grant to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted," as well as apply the five criteria enumerated above in the October 16, 2023 Resolution (Id. at 612; see Town Law § 267-b[3][b]; Town Code § 98-95).

The common factor relied upon by the Town Board in its Resolution was the impact of Petitioners' proposed development on public safety. Specifically, Respondents relied upon considerations of increased vehicular traffic that would result from three additional single-family homes being constructed, and the ability to safely exit the proposed common driveway onto Barbara Lane based upon the safe stopping distance of vehicles traveling along that roadway. However, the Town Board failed to properly substantiate the asserted safety concerns. "[E]xpert opinion regarding traffic patterns, when presented, may not be disregarded in favor of generalized community opposition[;] [h]owever, where there are other grounds in the record on which to base denial, such as contrary expert opinion regarding traffic conditions, deference must be given to the discretion and commonsense judgments of the board" (Retail Prop. Trust v Bd. of Zoning Appeals, 98 NY2d 190, 196 [2002]). Here, it is undisputed that the Town Board's own expert reviewed Petitioners' expert submissions on the substantive safety of the proposed driveway, and concluded that the location was "appropriate for consideration of a variance" from the 300-foot minimum sight distance required by the Town Code. Neither the Highway Supervisor, the Town's other engineer, nor any of the Town Board members, referred to any other data, specific observations, analyses, or expert opinions to substantiate the asserted safety hazard.

As stated in the Resolution and expressed by two board members at the September 18, 2023 meeting, the principal issue relied upon by Respondents was the observation of Barbara Lane being used as a "cut-through" for increased rush hour traffic. The town board members did not specify when and to what extent they observed such increased traffic, and one of the board members referred principally to traffic on Martin Road. Such "conclusory assertions . . . even if supported by the personal knowledge of the members of the Town Board" are insufficient to rationally rebut Petitioners' showing that the proposed driveway would not present a safety hazard (Matter of C & A Carbone, Inc. v Holbrook, 188 AD2d 599, 600 [2d Dept 1992]).

More importantly, the claim is not supported by the data collected by the Highway Superintendent. The traffic counts he made show that traffic was highest during the mid-day hours, and was significantly decreased on average before 10:00 a.m. and after 4:00 p.m. Similarly, the speed counts made by the Highway Superintendent show that on Tuesday, March 7, 2023, out of a total of 21 cars observed on Barbara Lane, only two cars were observed traveling above 30 miles per hour prior to 10:00 a.m. or after 4:00 p.m. (one during each time period). No cars were observed exceeding the speed limit during those time periods the following day, Wednesday, March 7, 2023 (out of 25 total cars observed that day). This is consistent with the Highway Superintendent's report to the Town Board in March 2023 that "the average speed [on Barbara Lane] is around 20mph." Finally on this point, while Respondents' engineer asserted on September 18, 2023 that the AASHTO driveway sight distance for low-volume roadways at 30 miles per hour is 135 feet—a distance which the proposed driveway does not meet to the west—he did not assert that the Town Board should apply that standard. Thus, although Respondents are correct that they were "not required to accept the opinions of [Petitioners'] traffic consultant over [their] own traffic consultant" (Matter of DeFeo v Zoning Bd. of Appeals of Town of Bedford, 137 AD3d 1123, 1127 [2d Dept 2016]), the Highway Supervisor and Respondents' engineer did not present evidence to substantiate the Town Board's claims that rush hour posed a particular traffic safety hazard on Barbara Lane or that the proposed driveway would be unsafe under prevailing traffic conditions. As a result, the Town Board could not rationally conclude that "the granting of the variance will create an unreasonable safety hazard and detriment to the property owners and their families whose houses border on Barbara Lane, especially during times of rush hour traffic," as stated in the Resolution (see, e.g., Sanford v Whearty, 216 AD2d 399, 400 [2d Dept 1995] [planning board irrationally denied subdivision approval for failure to substantiate claims that the proposed development would have an adverse impact upon traffic safety]; cf. Retail Prop. Trust, 98 NY2d at 196 [zoning board of appeals denial of application was rational where it was based upon competing expert opinion which "presented valid scientific bases for rejecting" the application]).

Respondents also argue that they are not required to apply the AASHTO standards for low-volume roadways relied upon by Petitioners in place of the Town Code's requirements. The Town Code permits applications for variances from those requirements. Therefore, the Town Board was required to set forth a rational basis for rejecting national safety standards for roadway design. Since the Town Board's engineer concurred in the applicability of the AASHTO standards as stating an appropriate safety standard for the observed average speed of slightly less than 25 miles per hour, and Respondents nowhere explain why either the 300-foot minimum sight distance requirement of the Town Code or the AASHTO standard at 30 miles per hour should be the more appropriate safety standard, Respondents' adherence to the Town Code was inherently arbitrary.

The Town Board's other reasons for denying the sight line variance are similarly without basis in the record. The Town Board's finding that Petitioners did "not demonstrate[ ] that a shared driveway could not be created to access the three proposed residential lots on Martin Road with less of an impact on safety" is contradicted by Petitioners' engineers' findings that traffic volume on Martin Road was measured to be approximately eight times greater than on Barbara Lane, as well as Town Board members' assertions (however unsubstantiated) that Martin Road is also used as a "cut-through" for rush hour traffic. Additionally, the criterion under which this finding was made requires consideration of options "other than an area variance," and it is undisputed that a driveway entering onto Martin Road would also require a sight distance variance. Thus, even if Petitioners had proposed an alternative driveway location off Martin Road, then pursuant to Respondents' adherence to the Town Code requirements, that option would also be denied. Petitioners cannot be faulted for failing to undertake a course of action that would have been futile. Likewise, the Town Board improperly found that "the reduction of the sight distance requirements . . . will, in fact, have the potential to create an adverse effect or impact on the physical conditions in the neighborhood." The finding lacks a basis in the record for the reasons set forth above. Moreover, the Highway Superintendent acknowledged that "several driveways . . . installed in the [19]50's and 60's]" on Barbara Lane have never been compliant with the 300-foot minimum sight distance requirement, yet no particular safety hazards or other adverse impacts were identified with respect to those driveways.

Based on the foregoing, the Town Board's denial of Petitioners' application for a variance from the driveway sight distance requirements should be annulled, and the variance should be granted. Since that denial, and the resulting inability of Petitioners' development plan to provide "safe access to and from a Town road," served as the sole basis for the denial of Petitioners' ODA application, that denial should also be annulled. However, the record does not show that the full merits of that application have yet been considered, nor has environmental impact review pursuant to SEQRA been completed. These matters should therefore be remitted to the Town Board for further consideration consistent with this decision.

Based on the foregoing, it is hereby

ORDERED that the petition is granted to the extent set forth above, and otherwise denied; and it is further

ORDERED that pursuant to CPLR 7806, the October 16, 2023 Resolution of Respondent Town Board is annulled; and it is further

ORDERED that Respondent Town Board shall grant Petitioners a variance from the driveway sight distance requirements of Town Code § 46-3(A) for their proposed driveway entering onto Barbara Lane; and it is further

ORDERED that Respondent Town Board is directed to proceed with a review of Petitioners' application for an Open Development Area pursuant to Town Law § 280-a, including environmental impact review pursuant to SEQRA, and render a timely determination; and it is further

ORDERED that Petitioners' fourth cause of action for regulatory taking is dismissed without prejudice as moot with respect to Town Code § 46-3, and unripe for judicial review with respect to the Town Board's pending determination of Petitioners' application under Town Law § 280-a.

The foregoing constitutes the decision and order of the Court.

Dated: July 18, 2024

Poughkeepsie, New York

ENTER:

MARIA G. ROSA, J.S.C.

Pursuant to CPLR § 5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.

FOOTNOTES

1.   The "variance" sought by Petitioners is not, strictly speaking, an "area variance." That term is defined by statute as "the authorization . . . for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations" [Town Law 267[1][b] [emphasis added]." It is undisputed that the principal ordinance at issue here, Town Code § 46-3, is within the chapter governing "Curb Cuts, Road Upgrades, Driveways Construction, Reconstruction and Resurfacing" not within the chapter governing "Zoning" (i.e., Chapter 98). However, as the parties did not brief this issue, and the Town Board's application of the area variance standard of review was not prohibited by law or irrational, the Court will review the determinations pursuant to this standard, as well.

Maria G. Rosa, J.