                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 3, 2016                   522032
________________________________

In the Matter of ROCCO
   LUCENTE,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
PAULETTE TERWILLIGER, as
   Town Clerk of the Town
   of Ithaca,
                    Respondent.
________________________________


Calendar Date:   September 8, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Rose and Aarons, JJ.

                             __________


      Williamson, Clune & Stevens, Ithaca (John H. Hanrahan of
counsel), for appellant.

     Susan H. Brock, Ithaca, for respondent.

                             __________


Garry, J.P.

      Appeal from a judgment of the Supreme Court (Rumsey, J.),
entered February 10, 2015 in Tompkins County, which dismissed
petitioner's application, in a combined proceeding pursuant to
CPLR article 78 and action for declaratory judgment, to compel
respondent to grant petitioner final subdivision approval.

      Petitioner owns vacant property in the Town of Ithaca,
Tompkins County. In January 2006, he submitted an application to
the Town Planning Board seeking approval to subdivide the
property into 50 parcels consisting of 47 residential lots, two
parcels to be donated to Cornell University as wildlife open
space and a parcel to be dedicated to the Town and added to an
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existing park. In July 2006, following review of these
submissions, an environmental assessment and a public hearing,
the Planning Board issued a negative declaration of environmental
significance pursuant to the State Environmental Quality Review
Act (see ECL art 8 [hereinafter SEQRA]) and granted preliminary
subdivision approval with various conditions. On September 10,
2007, petitioner applied for final subdivision approval,
submitting a proposed final plat that made several changes in the
proposed project, particularly with reference to drainage and
stormwater management. On the date that the final application
was submitted, the Town Board adopted a 270-day moratorium that,
as pertinent here, prohibited the Planning Board from issuing
"[a]cceptance, consideration, preliminary approval or final
approval . . . of any plan or application for subdivision of"
petitioner's property (Local Law No. 9 [2007] of Town of Ithaca
§ 2 [A]). Thereafter, with petitioner's consent, the Town Board
extended the moratorium for two additional 270-day periods (see
Local Law No. 8 [2008] of Town of Ithaca; Local Law No. 8 [2009]
of Town of Ithaca).

      Following the expiration of the extended moratorium, no
further action was taken on petitioner's application until
September 2014, when petitioner demanded that respondent issue a
certificate establishing default approval of his application
based upon the Planning Board's failure to take action on his
2007 final application within the statutory time limit (see Town
Law § 276 [8]). Respondent denied petitioner's request on the
ground that, among other things, additional SEQRA review – which
was required due to the modifications in the final application –
had never been completed. Petitioner commenced this combined
CPLR article 78 proceeding and action for declaratory judgment
seeking, as pertinent here, to annul respondent's determination
and direct respondent to issue the certificate of approval.
Supreme Court dismissed the combined petition/complaint, and
petitioner appeals.

      A certificate of default approval of a preliminary or final
plat must be issued upon demand when a planning board fails to
take action within the applicable statutory time limit "after
completion of all requirements under [SEQRA]" (Town Law § 276
[8]; see Matter of King v Chmielewski, 76 NY2d 182, 188 [1990];
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Wallberg v Planning Bd. of Town of Pound Ridge, 115 AD2d 539, 539
[1985]). The Town Law requires a planning board to act within 62
days after submission of a final plat (see Town Law § 276 [6]
[b], [c], [d]), and the applicable Town subdivision regulations
shorten that period to 45 days (see Code of the Town of Ithaca
§ 234-16 [C]). Petitioner contends that he is entitled to a
certificate of default approval because the Planning Board did
not act upon his final plat submission within these time limits
after the submission of the final plat and the expiration of the
extended moratorium.1 Supreme Court held that the time period
within which the Planning Board was required to act never began
to run because "all requirements under [SEQRA]" were never
completed (Town Law § 276 [6]). We agree, and affirm.

      It is undisputed that petitioner's property is located in
an area that has historically experienced problems with drainage,
flooding and stormwater management. Petitioner's application for
preliminary subdivision approval proposed to manage stormwater
runoff by directing it into existing wetlands on the property and
detaining it there. The negative declaration under SEQRA was
based upon that stormwater management plan, and the Planning
Board's approval of the preliminary subdivision application was
conditioned, in part, upon approval of the stormwater management
system by the Department of Environmental Conservation.

      However, the Department of Environmental Conservation
apparently subsequently advised that it would not approve the
proposed use of existing wetlands for stormwater management.
Accordingly, petitioner's September 2007 application for final
subdivision approval contained a revised stormwater management
plan that, among other changes, called for the clearing of
certain areas of forested wetlands – located within an area
designated as a Unique Natural Area by county environmental
officials – to permit the construction of stormwater management
facilities, including a permanent artificial pond. The Town


    1
        A valid moratorium extends the time within which a
planning board must act (see Matter of Dune Assoc. v Anderson,
119 AD2d 574, 575 [1986]), and petitioner does not challenge the
validity of the extended moratorium.
                              -4-                522032

Attorney averred without contradiction that, before the final
plat was submitted, she discussed with petitioner's counsel and
engineer the need for additional SEQRA review to determine
whether the previously issued negative declaration was still
appropriate in view of these modifications. Petitioner's
engineer was also reportedly present at a meeting of the Planning
Board where the Town Attorney advised of the need for additional
SEQRA review. When the final plat was submitted, it included a
revised long form environmental assessment reflecting these
changes together with a letter from petitioner's engineer
describing the modifications as "extensive" and stating that
petitioner understood that they "[would] require a SEQRA
amendment."

      No additional SEQRA review ever occurred. According to
respondent, petitioner and Town officials held discussions and
meetings during the five years following the imposition of the
moratorium regarding several alternative subdivision design
proposals that included various changes, such as fewer housing
units, different lot configurations, features designed to protect
wildlife and minimize the ecological impact on environmentally
sensitive areas of the property and even a potential land swap,
by which petitioner would have developed an entirely different
parcel. Respondent asserts – and petitioner does not dispute –
that at no point between 2007 and the 2014 commencement of this
proceeding were there any discussions of the original subdivision
application or requests for additional SEQRA review. Town
officials believed that petitioner had abandoned his application
for final approval of the original design and therefore never
commenced the previously-contemplated additional SEQRA review of
that application.

      Petitioner now contends that no further SEQRA review was
required, but he conceded otherwise in the final application
itself, and his petition does not assert that SEQRA review was
complete. Even if, as he now contends, it was the Planning
Board's burden to initiate additional SEQRA review of his final
application rather than his responsibility to request it, the
narrow language of Town Law § 276 (8) limits the remedy of
default approval to failures to comply with statutory time limits
that occur "after completion of all requirements under [SEQRA]"
                                -5-                  522032

(emphasis added). As such, the default approval mechanism does
not provide a remedy for a planning board's untimeliness in
complying with SEQRA requirements (see Terry Rice, Practice
Commentaries, McKinney's Cons Laws of NY, Book 61, Town Law § 276
at 39; see also Matter of Honess 52 Corp. v Widholt, 176 Misc 2d
57, 63-64 [Sup Ct, Dutchess County 1998]). Here, as all SEQRA
requirements were never completed, the time period within which
the Planning Board was required to act on the final subdivision
application never began to run, and Supreme Court properly found
that petitioner is not entitled to default approval (see Town Law
§ 276 [8]; compare Matter of Benison Corp. v Davis, 51 AD3d 1197,
1197-1198 [2008]; Matter of Pheasant Meadow Farms, Inc. v Town of
Brookhaven, 31 AD3d 770, 770-771 [2006]).2 Accordingly, the
combined petition/complaint was properly dismissed.

        Egan Jr., Lynch, Rose and Aarons, JJ., concur.



        ORDERED that the judgment is affirmed, without costs.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court



    2
        Contrary to petitioner's contention, a different result
is not required by Matter of Leonard v Planning Bd. of Town of
Union Vale (136 AD3d 868 [2016]); that case did not involve the
default approval mechanism of Town Law § 276 (8) and, as such,
does not apply to this analysis.
