Holmes v. Planning Board

Mollen, P.J. (dissenting).

While I am in agreement with many of the conclusions contained in the comprehensive and excellent opinion of my distinguished colleague, nevertheless I am compelled to dissent and would affirm the judgment of Special Term. As I perceive the issue before this court, it is solely the question of the reasonableness of the condition imposed by the respondent planning board in its approval of the site plan submitted by appellants.

I agree with the majority that (1) the planning board had the authority to approve appellants’ site plan conditionally, (2) traffic congestion is related to public health, safety and welfare and is a mandated subject for the planning board’s consideration, (3) the action of the planning board, in imposing a condition with the limited goal of eliminating curb cuts in order to reduce traffic congestion and increase safety on the road, was well within the parameters of authority delegated to the planning board by the town, (4) the preparation and adoption of a limited goal plan on the basis of the evidence presented was consistent with the comprehensive plan and compatible with the regional and State planning goals, (5) there is a reasonable relationship between the problem that would result from the effectuation of the proposed development and the imposition of the conditional solution designed to alleviate the problem, and (6) conceptually, the condition imposed by the planning board is not inherently confiscatory.

In view of the foregoing I conclude, as did Special Term, that the condition imposed was a reasonable exercise of the planning board’s authority and in furtherance of public health, safety and welfare.

I would note that appellants did not raise the issue to which the majority addresses itself, namely, lack of specificity in the limited goal plan. The impact of the majority’s decision will be to impose a mandate at this time upon the town to more fully particularize a plan for future implementation which it is apparently not prepared to do at the present time, and which is unnecessary with regard to the present application. Insofar as the appellants are concerned, the result will be to further prolong the delay, in all likelihood for a lengthy period, of the approval of its proposed site plan.

As indicated above, the majority and I are in agreement that concern for the traffic congestion problem is a valid concern of the planning board; the condition here imposed is a reasonable step towards solving that problem.

For the foregoing reason I dissent and vote to affirm.

Hopkins and Mangano, JJ., concur with Titone, J; Mollen, P.J., dissents and votes to affirm the judgment, with an opinion.

Judgment of the Supreme Court, Westchester County, dated February 28, 1978, reversed, on the law, without costs or disbursements, and matter remitted to the Planning Board of the Town of New Castle for further proceedings in accordance with the opinion herein.