Agenda - Planning Commission - 06/06/1995

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Z.B. May 1995 Page 5 Certificate of Occupancy Board Refuses to Grant Certificate After Approving Subdivision Wid~aier v. Town of Clarkstown, 618 N. Y.S. 2d 53 (New York) 1994 Wid~aier applied for approval of a six-lot subdivision in the town of Clarksto~. n, N.Y. The surrounding communities did not have curbs or sidewalk~. The town Planning Board granted preliminary approval subject to certain modifications, but these did not include curbs or sidewalks. The board gave final approval after its chairperson, signed the subdivision map. The map made no ieference to curbs or sidewalks, although'it explicitly mentioned other public improvements such as streets, easements, parks, and sanitary facilities.' Wid~aier built homes on four lots and got certificates of occupancy for them. W~en he tried to get a certificate of occupancy for the fifth home, the deputy director of environmental control told him he would not get one until he installed concrete curbs and sidewalks in the entire subdivision. Widm~ier appealed the deputy director's decisi6n, claiming the board had waived the curbing and sidewalk requirement. He relied on the minutes of the toXin'board's meeting, which showed that the deputy director said concrete ~urbing did not 'seem appropriate for the subdivision. Also, the board hadiconsidered the waiver and discussed the requirements of a berm rather thafi~ concrete.curbing. The court ruled in Widmaier's favor, and the board appealed. DECISIOn: Affirmed, in favor of Widmaier. The board considered the curbing and sidewalk requirement and waived it. The approved subdivision map did not refer to curbs or sidewalks and the town had already issued four certificates of occupancy. Subdivisi6n -- What Makes Land Division a Subdivision? Jaxtim~r v. Planning Board of Nantucket, 643 N.E. 2d 1064 (Massdchusetts) 1995 Jaxtim ~er owned land on Tristram Avenue in Nantucket, Mass. The land was regista~red and identified as Lot A on an approved subdivision plan, and Tristram ~venue was a road shown on the plan. Jaxtimer filed a scheme with the Planning Board of Nantucket, showing the division of Lot A into three lots fronting on Tristram Avenue. Jaxtimer asked the board to say the plan did not nee_gl approval under the subdivision control law, but the board refused. : Jaxtimar appealed to the Land Court. The board argued that Tristram Avenue wa~ not an actual street with enough access for emergency vehicles, which the s~bdivision control law required. According to the board, the road was a paper street, which was too narrow and ~nsuff~c~ently graded. The cod. rt granted Jaxt~mer judgment w~thout a trial, hnd~ng Tristram Avenue to ~e a way shown on an approved plan. Therefore, the board had to