                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 10, 2015                   520758
________________________________

SULLIVAN FARMS IV, LLC, et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

VILLAGE OF WURTSBORO et al.,
                    Respondents.
________________________________


Calendar Date:   October 19, 2015

Before:   McCarthy, J.P., Rose, Devine and Clark, JJ.

                             __________


      Whiteman Osterman & Hanna, LLP, Albany (John J. Henry of
counsel), for appellants.

      Lewis & McKenna, Saddle River, New Jersey (Alyse D. Terhune
of counsel), for respondents.

                             __________


Devine, J.

      Appeal from an order and judgment of the Supreme Court
(McGuire, J.), entered October 22, 2014 in Sullivan County,
which, in a combined proceeding pursuant to CPLR article 78 and
action for declaratory judgment, granted respondents' motion to
dismiss the amended petition/complaint.

      Petitioner Sullivan Farms II, Inc. owned approximately 54
acres of real property in the Village of Wurtsboro, Sullivan
County and 31 acres of adjoining property in the Town of
Mamakating, Sullivan County. In 2009, Sullivan Farms II obtained
conditional final site plan and subdivision approval from
respondent Village of Wurtsboro Planning Board for the
development and construction of a 72-unit townhouse residential
cluster development known as "Kaufman Farms West" (see Village
                               -2-                520758

Law § 7-738 [1] [a]; Village of Wurtsboro Zoning Law § 5.19).
The approval lapsed due to inactivity, prompting petitioner
Sullivan Farms IV, LLC, the successor-in-interest to Sullivan
Farms II, to seek approval in 2011. The Planning Board again
gave its imprimatur for the project and, in 2012, the subdivision
plat for the project was signed by the Planning Board chairperson
and filed with the Sullivan County Clerk. Meanwhile, in June
2012, petitioner Kaufman Farms, LLC submitted a site plan/special
use application with the Planning Board for a separate
residential cluster development, known as "Kaufman Farms East,"
on nearby property that it owned.1

      The Planning Board revisited its approval of the Kaufman
Farms West project in 2013. During the pendency of that review,
respondent Village of Wurtsboro Board of Trustees adopted Local
Law No. 1 of the Village of Wurtsboro (2014) and Local Law No. 2
of the Village of Wurtsboro (2014). The two local laws amended
the Village's subdivision regulations and zoning laws to, among
other things, alter the methodology for calculating the number of
allowable building lots or dwelling units for a residential
cluster subdivision within the Village. The Planning Board
thereafter rescinded its prior approval for Kaufman Farms West in
May 2014, finding that the approval conflicted with applicable
state and local laws and was void ab initio.

      Petitioners thereafter commenced this hybrid CPLR article
78 proceeding and declaratory judgment action interposing 12
causes of action challenging the adoption of the subject local
laws and the determination by the Planning Board to rescind the
subdivision and site plan approvals for Kaufman Farms West.
Petitioners subsequently filed an amended petition/complaint
adding two additional causes of action. Respondents filed a pre-
answer motion to dismiss, arguing that the amended
petition/complaint was deficient in various respects. Supreme
Court agreed and determined that, as is relevant here, the
amended petition/complaint failed to state a cause of action.
Petitioners now appeal.


     1
        The record indicates that no further action has occurred
with regard to the application for Kaufman Farms East.
                              -3-                520758

      "In assessing the adequacy of a complaint under CPLR 3211
(a) (7), the court must give the pleading a liberal construction,
accept the facts alleged in the complaint to be true and afford
the plaintiff 'the benefit of every possible favorable
inference'" (J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 21 NY3d
324, 334 [2013], quoting AG Capital Funding Partners, L.P. v
State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]).
Nevertheless, "allegations consisting of bare legal conclusions
as well as factual claims flatly contradicted by documentary
evidence are not entitled to any such consideration" (Maas v
Cornell Univ., 94 NY2d 87, 91 [1999] [internal quotation marks
and citation omitted]; accord Simkin v Blank, 19 NY3d 46, 52
[2012]; see Matter of Conners v Town of Colonie, 108 AD3d 837,
839 [2013]). Supreme Court correctly determined that such was
the case presented here and, as such, we affirm.

      Turning first to the rescission of the subdivision and site
plan approval, the Planning Board was empowered to rescind an
approval that was issued in excess of legal authority and void ab
initio (see Matter of Reiss v Keator, 150 AD2d 939, 941 [1989];
see also Town of Amherst v Rockingham Estates, LLC, 98 AD3d 1241,
1242 [2012]). Moreover, "[d]espite the lack of statutory
authority, a planning board may reconsider a determination if
there has been a material change of circumstances since its
initial approval of the plat or new evidence is presented"
(Matter of 1066 Land Corp. v Planning Bd. of Town of Austerlitz,
218 AD2d 887, 887 [1995]; see Matter of Lynn v Planning Bd. of
the Town of E. Hampton, 89 AD3d 1028, 1028 [2011], lv denied 18
NY3d 807 [2012]). The question is accordingly not whether the
Planning Board had the power to act in the way it did, but
whether it abused its discretion in doing so (see Matter of
Center of Deposit, Inc. v Village of Deposit, 108 AD3d 851, 853
[2013]; Matter of Lynn v Planning Bd. of the Town of E. Hampton,
89 AD3d at 1028).

      The number of building lots or dwelling units in a cluster
development "shall in no case exceed the number which could be
permitted, in the planning board's judgment, if the land were
subdivided into lots conforming to the minimum lot size and
density requirements of the zoning local law applicable to the
district or districts in which such land is situated" (Village
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Law § 7-738 [3] [b]). Kaufman Farms West was located in a
district zoned for cluster developments and, using a formula
provided by the Village of Wurtsboro Zoning Law, the 85 acres
encompassing the development was more than sufficient to permit
the proposed 72 dwelling units.

      That being said, the documents submitted in support of the
applications for approval demonstrate that 31 acres of the
subdivision were located outside the Village limits in the Town
of Mamakating, Sullivan County.2 This was no revelation to the
Planning Board, as the acreage was included in the subdivision
plan upon the expectation that the land would be annexed from the
Town of Mamakating. Annexation never occurred, however, and the
54 acres actually located within the Village were inadequate to
support the scope of the proposed subdivision. Inasmuch as the
Planning Board had no jurisdiction over property outside the
Village limits (see e.g. Village Law § 7-700; Matter of Golden v
Planning Bd. of Town of Ramapo, 30 NY2d 359, 369-370 [1972];
Matter of Village of Chestnut Ridge v Town of Ramapo, 45 AD3d 74,
88 [2007], lvs dismissed 12 NY3d 793 [2009], 15 NY3d 817 [2010]),
and the land within the Village did not permit a project of the
scope proposed under the terms of the local zoning regulations,
the Planning Board rationally determined that its final approval
of the Kaufman Farms West project violated state and local law



    2
        These documents conclusively contradict the assertion of
petitioners that an "alternative" density calculation was used
that relied in whole upon property within the Village that later
became the subject of the proposed Kaufman Farms East
subdivision. Indeed, an engineering review that cited this
alternative acknowledged that the proposal before the Planning
Board involved land within the Town of Mamakating, and that
preliminary plans for Kaufman Farms East must be developed
"before considering [the alternative] as a solution . . . with
regard to density calculations." No effort was made to obtain
subdivision approval for Kaufman Farms East until after approvals
had been granted for Kaufman Farms West, and the record leaves no
doubt that the Planning Board did not rely upon the alternative
calculation.
                              -5-                520758

and must be rescinded.3

      Petitioners further asserted a claim alleging that they had
obtained vested rights in the Kaufman Farms West development
based upon the Planning Board's approval of the subdivision. It
is true that "a vested right can be acquired when, pursuant to a
legally issued [subdivision approval], the landowner demonstrates
a commitment to the purpose for which the [approval] was granted
by effecting substantial changes and incurring substantial
expenses to further the development" (Town of Orangetown v Magee,
88 NY2d 41, 47 [1996]; see Matter of Waterways Dev. Corp. v Town
of Brookhaven Zoning Bd. of Appeals, 126 AD3d 708, 711 [2015], lv
denied 25 NY3d 909 [2015]; Matter of Pete Drown, Inc. v Town Bd.
of Town of Ellenburg, 229 AD2d 877, 878 [1996], lv denied 89 NY2d
802 [1996]). The critical point was that subdivision approval
here was not legally granted in the first instance and, thus,
Sullivan Farms never had a valid approval from which vested
rights could flow (see Matter of Lamar Adv. of Penn, LLC v
Pitman, 9 AD3d 734, 736 [2004]; Incorporated Vil. of Asharoken v
Pitassy, 119 AD2d 404, 416 [1986], lv denied 69 NY2d 606 [1987]).

      Petitioners next contend that Supreme Court erred in
dismissing its State Environmental Quality Review Act
(hereinafter SEQRA) challenges to the Planning Board's rescission
of subdivision approval. Petitioners alleged that the Planning
Board failed to make any findings pursuant to SEQRA when it


     3
        Estoppel may not generally be invoked against the
Planning Board to prevent it from rescinding an erroneously
issued permit, and petitioners have alleged no facts that could
potentially allow an estoppel argument to be made (see Matter of
Parkview Assoc. v City of New York, 71 NY2d 274, 282 [1988],
appeal dismissed and cert denied 488 US 801 [1988]; Matter of
Oakwood Prop. Mgt., LLC v Town of Brunswick, 103 AD3d 1067, 1069
[2013], lv denied 21 NY3d 853 [2013]). Nor is there any basis
for the application of Village Law § 7-740, which establishes a
statute of limitations for those who wish to challenge a
determination of the Planning Board in a CPLR article 78
proceeding and has no applicability to the inherent authority of
the Planning Board to revisit its prior determinations.
                              -6-                520758

rescinded the subdivision approval, but that claim was rendered
academic by the Planning Board's adoption of a revised
determination that made the requisite findings (see Matter of
City of Gloversville v Town of Johnstown, 210 AD2d 760, 761-762
[1994]; Matter of Weinstein Enters. v Town of Kent, 171 AD2d 874,
875 [1991]; compare Matter of City of Glens Falls v Town of
Queensbury, 90 AD3d 1119, 1120-1121 [2011]).   The Planning Board
correctly noted in its revised determination that it "was merely
performing the ministerial function of rescinding an approval
that was void ab initio" and, as a result, was not performing an
"action" so as to trigger the requirements of SEQRA (Matter of
Reiss v Keator, 150 AD2d at 942; see ECL 8-0105 [4], [5] [ii]).

      With regard to the adoption of the local laws, the Board of
Trustees correctly designated them as "unlisted" actions because,
instead of changing the allowable uses within a zoning district,
they only amended the procedures to be employed in assessing
proposed subdivisions and cluster developments (see 6 NYCRR 617.2
[ak]; compare 6 NYCRR 617.4 [b] [2]; Centerville's Concerned
Citizens v Town Bd. of Town of Centerville, 56 AD3d 1129, 1130
[2008]). Respondents submitted documentary proof demonstrating
that, as is appropriate for unlisted actions, a short
environmental assessment form for each local law was submitted
"to assist [the Board of Trustees] in determining the
environmental significance or non-significance of actions" (6
NYCRR 617.2 [m]; see 6 NYCRR 617.6 [a] [3]; Matter of Ellsworth v
Town of Malta, 16 AD3d 948, 949 [2005]). The Board of Trustees
then made "negative declaration[s] as to whether the proposed
action[s] will have a significant effect on the environment"
(Matter of Cathedral Church of St. John the Divine v Dormitory
Auth. of State of N.Y., 224 AD2d 95, 99 [1996], lv denied 89 NY2d
802 [1996]; see Matter of Ellsworth v Town of Malta, 16 AD3d at
949).

      The record demonstrates that, in so doing, the Board of
Trustees "identified the relevant areas of environmental concern,
took a 'hard look' at them, and made a 'reasoned elaboration' of
the basis for its determination[s]" (Matter of Jackson v New York
State Urban Dev. Corp., 67 NY2d 400, 417 [1986], quoting Aldrich
v Pattison, 107 AD2d 258, 265 [1985]; accord Matter of Friends of
the Shawangunks, Inc. v Zoning Bd. of Appeals of Town of
                              -7-                520758

Gardiner, 56 AD3d 883, 884-885 [2008]). The short form
environmental assessment forms made clear that the local laws
would have no environmental impacts and, indeed, were intended to
recognize that cluster developments were more environmentally
beneficial than subdivisions in that they utilized a smaller
portion of a proposed site. In furtherance of that recognition,
the local laws authorized "the Planning Board to modify the
minimum lot area, lot width, setback and frontage requirements as
applied to cluster developments," and harmonized the Village's
subdivision regulations and zoning law with regard to calculating
the maximum number of dwelling units permitted in a cluster
development. Moreover, the public was given notice of the
proposed amendments to the local laws, and petitioners were given
an opportunity to offer comments and address the potential
adverse environmental impacts at a public hearing. Given the
content of the local laws and the documented efforts of the Board
of Trustees to discern their environmental impact, we agree with
Supreme Court that the Board of Trustees took the requisite hard
look at the environmental impacts and made a sufficient
elaboration of the basis of its negative declarations (see Matter
of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 689-
690 [1996]; Matter of Gabrielli v Town of New Paltz, 116 AD3d
1315, 1318 [2014]).

      Petitioners lastly contend that Supreme Court erred in
dismissing their claims that the subject local laws were
unconstitutionally vague insofar as they provided the Planning
Board with unfettered discretion to determine the number of
dwelling units permitted on a given property. "[I]t is incumbent
on the challenging parties to demonstrate that the statutory
language is so indefinite that they could not have reasonably
understood it" (Clements v Village of Morristown, 298 AD2d 777,
778 [2002] [internal quotation marks and citations omitted];
see Matter of Gabrielli v Town of New Paltz, 116 AD3d at 1319).
A specific methodology is set forth in the local laws for
determining the maximum number of dwelling units in a proposed
cluster subdivision and, suffice it to say, this patently clear
language invites neither misunderstanding by a person of ordinary
intelligence nor arbitrary enforcement by the Planning Board
(compare Matter of Turner v Municipal Code Violations Bur. of
City of Rochester, 122 AD3d 1376, 1377-1378 [2014]).
                              -8-                  520758

Petitioners' constitutional claims are therefore belied by the
plain language of the local laws, and Supreme Court properly
dismissed them (see Matter of Burke v Denison, 218 AD2d 894, 896
[1995]).

      Petitioners' remaining contentions, to the extent that they
are not rendered academic in light of the foregoing, have been
examined and found to be lacking in merit.

     McCarthy, J.P., Rose and Clark, JJ., concur.



      ORDERED that the order and judgment is affirmed, without
costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
