Agenda - Planning Commission - 06/03/1997

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Page 8 - May 10, 1997 Z.B. public safety, the exemption had to be given more weight. It couldn't be assumed that the Legislature intended the public-safety concerns to supersede the specific exception. To ignore the exemption in favor of the intent would be to disregard the regulations as they were written. As a result, Three Guys' qivision of land was not subject to the subdivision regulations. see also: Correll v. Division of Social Services, 418 S.E.2d 232. see also: Hyler v. GTE Prods. Co., 425 S.E.2d 698. Subdivision - Owner says construction won't aggravate property's flooding problem Michelson v. Warshavsky, 653 N.Y.S.2d 622 (New York) 1997 Michelson bought property in the village of Lawrence, N. Y., and requested permission to divide the property into lots for three single-family residences. At a hearing, neighboring owners testified Michelson's property experienced severe flooding. As a result, the residents claimed, the flooding produced runoff that damaged their homes and property and flooded an access road, preventing use by residents and emergency vehicles, and covering fire hydrants. The owners also testified that construction on the property had been attempted before, only to be abandoned, aggravating the flooding problem. One resident supplied photographic evidence of the flooding damage. In response, Michelson claimed not to know about the flooding situation, and submitted letters stating the proposed subdivision and construction would not exacerbate the problem. The letters stated this claim, but apparently did not give reasons why the construction wouldn't harm the area. After the hearing, the town's planning board denied the subdivision request, saying Michelson didn't adequately address the effect the construction could have on the property's flooding. Michelson appealed the board's decision, and the court reversed, ordering that the subdivision be approved. The planning board appealed. DECISION: Reversed. Whil~ a planning board could not base its decisions on the general complaints of citizens, it could exercise discretion and common sense when reviewing facts, and could require the applicant to address concerns that emerged. In this case, the neighboring residents raised legitimate concerns about the flooding situation and the effects any additional construction could have on it. To support their concerns, the residents supplied testimony and photographic evidence. As a result, these issues had to be addressed by Michelson. However, Michelson's letters of support did not respond to the residents' concerns about the flooding. The letters said only that the construction wouldn't worsen the situation - but didn't explain why the construction wouldn't cause any problems. Therefore, the planning board's decision had to be upheld. see also: M after of Market Square Properties v. Town of Guilder/and Zoning Board of Appeals, 66 N.Y.S.2d 893. see also: Reed v. Planning Board of Town of Chester, 501 N.Y.S.2d 710. AI"