James L. Garrett Co. v. Ouldenschuh

Motion for reargument, or, in the alternative, for leave to appeal to the Court of Appeals denied. Memorandum: Appellants move for reargument or leave to appeal to the Court of Appeals arguing, as before, that the denial of their application for approval of a clustered subdivision under section 281 of the Town Law was for the sole and exclusive reason that the subdivision would be clustered. Such is not among the reasons stated by the Planning Board of the Town of Brighton in its November 6, 1974 denial of appellants’ application. The charts and photographs presented as exhibits reveal that the clustered homes proposed to be built by Garrett have a different appearance from single-family dwellings which comprise all of the homes in the vicinity of the proposed development. The opposition spread on the record of the public hearing by residents of the area opposed to changing the character of their neighborhood together with the charts and photographs furnished a rational and substantial basis for the decision of the planning board. Special Term correctly concluded that it may not substitute its judgment for that of the planning board so long as the planning board’s determination found support in the evidence and was not illegal, arbitrary or capricious. Present—Moule, J. P., Cardamone, Simons, Mahoney and Del Vecchio, JJ.