SUPREME COURT OF THE STATE OF NEW YORK
WESTCHESTER COUNTY
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THE HUNTERSVILLE ASSOCIATION, INC. and
PAUL MOSKOWITZ, and ROBERT GIORDANO
Petitioners,
- against -
TOWN OF YORKTOWN PLANNING BOARD
and WILDER BALTER PARTNERS, LLC
(WB HUNTERBROOK, LLC) OWNER/
DEVELOPER FOR THE “HUNTER BROOK”
DEVELOPMENT aka ARROWCREST ESTATES
Respondents.
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To the Supreme Court, Westchester County:
Petitioners, as and for their verified petition, allege as follows:
1. This is a proceeding to set aside out the Yorktown Planning Board’s
decision of March 12, 2001. In that decision, in connection with the amendment
of the site plan for the Hunter Brook development, the Planning Board essentially
ordered the demolition of several hundred feet of historic stone walls, which for
some 200 years have lined historic Hunterbrook Road. Work which the developer
did not want to do, work which the Town’s experts felt was unnecessary and work
which will utterly destroy the character of the community.
Parties
2. The Huntersville Association is an incorporated homeowner association,
and petitioner Paul Moskowitz is its President. The Association currently has some
140 member-homeowners in the Huntersville area of Yorktown, all within a short
distance from the subdivision known as Hunter Brook Subdivision, located on
Hunterbrook Road in Yorktown.
3. Petitioner Paul Moskowitz is also an individual petitioner.
He resides less than 200 feet from the subject subdivision.
The Hunter Brook Subdivision
4. The Hunter Brook Subdivision consists of a 15 lot residential subdivision,
and which was granted final approval by the Yorktown Planning Board on
December 6, 1999. A true copy of the subdivision plat as submitted herewith
as Exhibit A. As relates to the issue of the stone walls, it is clear that the Planning
Board did not consider the historic value and potential landmark status of the stone
walls when it rendered its final approval.
5. In or about late 2000, the developer sought to eliminate the Hunterbrook
Road access to lot no. 4 on the curve in Hunterbrook Road, and to move the access
to the common driveway, which the developer is constructing at the north end within
his subdivision. Thus, there are entrances to the subdivision at Beekman Road which
the developer is constructing within his subdivision at the south end of the subdivision,
and the common driveway at the north end of the subdivision. Both of these accesses
are sufficiently far from the curve in Hunterbrook Road that the Yorktown Highway
Superintendent and the Yorktown Safety Committee have stated that sight distance
mitigation is not needed. See Exhibit B, affidavit of Eric DiBartolo, Yorktown
Superintendent of Highways.
6. The developer requested relief from the requirement to cut back sections
of curved shoulders of Hunterbrook Road for sight distance improvement. See Exhibit C,
Yorktown Planning Board memorandum of February 1, 2001.
7. The Yorktown Planning Board reopened its approval of the Hunter Brook
subdivision when it scheduled for a hearing on March 12, 2001. See Exhibit D,
Yorktown Planning Department agenda for the March 12, 2001 meeting of the
Yorktown Planning Board.
The Historic Stone Walls
8. The Hunterbrook stone walls are among the landmarks which give our community
its historic and rural character. Hunterbrook Road itself is well over 200 years old, going
back to the Pre-Revolutionary War era. The stone walls which line the road are thought
to have been created by then-resident farmers, who cleared their fields of the ubiquitous
rocks. Today, almost all the farmers are long gone, but a vestige of their efforts remains,
as residents have tried to preserve the stone walls which line several miles of the road.
9. A request was filed to the Yorktown Landmarks Committee to investigate the
declaring of the stone walls along Hunterbrook Road as a Historic Landmark under chapter
198 of the Yorktown Landmark Preservation Law. The Landmarks Committee has this
request officially under consideration.
10. The Landmarks Committee initiated an investigation. The investigation by
Committee Report is in progress. This investigation will take approximately 30 days.
See affidavit of Robert Giordano, Chairman of the Yorktown Landmarks Committee.
Imminent Demolition of the Stone Walls
11. Unfortunately, several hundred feet of those stone walls are about to be demolished,
thanks to a decision of the Planning Board on March 12, 2001. At the March 12 meeting,
the Planning Board refused to preserve any of the walls even though there was a major
modification to the site plan. The Planning Board decided to remove a curb cut on lot
no. 4 which had created a sight distance problem in the prior site plan, and to make
other modifications to the site plan involving the location of houses, driveways, and detention basins.
12. Thus, even though the developer was eliminating the Planning Board’s basis
for previously ordering road modifications, the Planning Board arbitrarily adhered to its
prior decision to tear down the stone walls. This was done in spite of the recommendations
of the Yorktown Highway Superintendent and the Yorktown Safety Committee.
13. In reviewing the proposed amendment to the site plan, and the request to not tear
down the stone walls, the Planning Board did not conduct any SEQRA review, instead relying
upon the SEQRA analysis from several years in the past. However, the modification to the
site plan was of sufficient magnitude that, we submit, the Planning Board should have supplemented
the environmental impact analysis. Moreover, the Planning Board ignored the fact that the
Yorktown Landmarks Committee is now Investigating by Committee, considering whether
to recommend the stone walls for Landmark status.
14. It would frustrate the purpose of SEQRA and the Town’s historic preservation law
if the Planning Board is permitted to order the demolition of one of the Town's true treasures,
before the Landmarks Committee can even act.
The Planning Board Decision Was
Arbitrary, Capricious and In Violation of Law
First Cause of Action
15. The Planning Board’s action was arbitrary and capricious in that the overwhelming
evidence demonstrates that, especially in light of the amendment eliminating the curb cut for lot
no. 4, there is no problem with sight distance on Hunterbrook Road -- and therefore no need to
destroy the historic stone walls. The Planning Board had no basis to require the stone walls be
demolished. . In the vicinity of the project, the stone walls do not obstruct sight distance.
See Exhibit B, affidavit of Eric DiBartolo, Yorktown Superintendent of Highways. Both the
Highway Superintendent as well as the Public Safety Committee indicate that there is now no
problem with sight distance -- opinions which the Planning Board simply elected to disregard.
16. Petitioners and the whole community will suffer irreparable injury if the walls
are demolished. By definition, once they are destroyed, they are gone. A central element
of the historic character of our community will be gone forever. Replacing the removed
walls with new ones on the modified road embankments will not restore the lost historic artifacts.
17 By contrast, the Town and the developer will suffer no hardship if the relief is granted,
enjoining demolition of the stone walls. There is plenty of other work which the developer can be
performing on his project during the time it will require for this matter to be fully adjudicated.
It is submitted that petitioners have established the immediate need for injunctive relief.
Absent the grant of relief, the developer will be required to begin demolition of the stone walls
-- something which he admits he does not want to do, but is required by the Planning Board to
perform. (We have named the developer in this action, not because we feel he has done anything
wrong in regard to this issue, but simply so he is bound by the result).
Second Cause of Action
18. The Planning Board’s decision was in violation of law, for failure to comply with
the New York State Environmental Quality Review Act (“SEQRA”). The Board’s actions
in regard to the March 12, 2001 decision constitute an Action within the meaning of SEQRA
and the regulations promulgated thereunder. As has been explained, the Planning Board’s
action will have a drastic and adverse impact on the environment in that the demolition of the
historic stone walls will destroy the character of the community. The Planning Board ignored
historic importance of the stone walls and the landmarking process in progess.
Third Cause of Action
19. The Planning Board’s decision evidences that it applied an incorrect
legal standard in reviewing the requests. On the face of the memo which confirms the
Planning Board’s decision of March 12, the Planning Board misinterpreted Town Law
Section 277. In a memo dated March 8, a copy of which is submitted as Exhibit E herewith,
Secretary of the Board Judith Reardon suggests that the Planning Board is required to
make off-site improvements (assuming the clear-cutting is an improvement) to adjacent roads,
like Hunterbrook Road. In her memo, she quotes the language from 277(2) to the effect
that the Board “shall” require suitable improvements to “streets and highways.” That is just
what Section 277 says, but it is only referring to “streets and highways” within the subdivision,
not those outside it. Medine v. Burns, 29 Misc. 2d 890, 208 N.Y.S.2d 12 (Sup. Ct. Nassau Co. 1960);
Sanford v. Whearty, 216 A.D.2d 399, 628 N.Y.S.2d 349 (2d Dept. 1995)(15 lot subdivision’s
traffic did not warrant improvements to adjoining road). Here, there was no issue of the criteria
for improvement of Beekman Road within the subdivision; the only question was what to do with
Hunterbrook Road, which is adjacent.
20. As to adjoining roads, the Board had discretion to require “improvements,”
but it is not mandatory. Here, the Planning Board misapprehended the law, viewing as
mandatory the requirement to “improve” Hunterbrook Road, by demolishing the stone walls.
The temporary restraining order requested should remain in effect until the completion of the
landmarking process.
CONCLUSION
21. Accordingly, petitioners respectfully request the Court enter an order vacating
the Planning Board resolution of March 12, 2001, to the extent such resolution (a) denied
the request to preserve the historic stone walls of Hunterbrook Road, and (b) directed that such
stone walls be demolished, on the grounds that the Planning Board decision was arbitrary, capricious
and in violation of law. No prior application has been made for the relief requested herein.
Dated: March ____, 2001
____________________________
40 Triangle Center
Yorktown Heights, New York 10598
(914) 243-5563
Attorney for Petitioner [Matthew Metz, Esq.]
VERIFICATION
STATE PF NEW YORK
WESTCHESTER COUNTY
PAUL MOSKOWITZ, being duly sworn, states:
I am an individual petitioner, as well as President of the corporate petitioner herein.
I hereby verify that the foregoing petition is true to the best of my personal knowledge,
except where stated to be upon information and belief, in which case it is true to the
best of my knowledge, information and belief.
____________________________
PAUL MOSKOWITZ
Sworn to before me on
March ____, 2001
___________________
Notary Public
List of Exhibits:
A. Hunter Brook subdivision plat
B. Affidavit of Eric DiBartolo, Yorktown Superintendent of Highways.
C. Yorktown Planning Board memorandum of February 1, 2001
D. Yorktown Planning Department agenda for the March 12, 2001 meeting
of the Yorktown Planning Board.
E. Yorktown Planning Board memorandum dated March 8, 2001.