Whispering Pines Assocs. v. Town of Queensbury Planning Bd.

2023 NY Slip Op 50800(U)

In the Matter of Whispering Pines Associates, LLC; Queensbury Holdings, LLC; and Robert Gardens North, LLC, Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. Town of Queensbury Planning Board; Town of Queensbury Zoning Board of Appeals; Hoffman Development Corporation; and 919 State Route 9, LLC, Respondents.

Index No. EF2022-70258

Supreme Court, Warren County

July 27, 2023

Unpublished Opinion

Braymer Law, PLLC, Glens Falls (Claudia K. Braymer of counsel), for petitioners Whispering Pines Associates, LLC and Robert Gardens North, LLC.

Fitzgerald Morris Baker Firth P.C., Glens Falls (John D Aspland of counsel), for petitioner Queensbury Holdings LLC.

Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Jacquelyn P. White of counsel), for respondents Town of Queensbury Planning Board and Town of Queensbury Zoning Board of Appeals.

Harris Beach PLLC, Albany (Javid Afzali of counsel), for respondent Hoffman Development Corporation.

Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (John D. Wright of counsel), for respondent 919 State Route 9, LLC.

ROBERT J. MULLER, J.S.C.

Respondent 919 State Route 9, LLC (hereinafter 919 State) is the owner of a 2.01-acre parcel of property located at 919 State Route 9 in the Town of Queensbury, Warren County, which property is at the northwest intersection of Weeks Road and State Route 9 (hereinafter the subject property). The subject property is zoned for "commercial intensive" use [R0002] ^[1] and includes a car wash that has been vacant for more than ten years. Petitioner Robert Gardens North, LLC (hereinafter Robert Gardens) owns and operates an apartment complex on the northern side of Weeks Road, directly behind the subject property and adjacent to its western boundary line. Petitioner Whispering Pines Associates, LLC (hereinafter Whispering Pines) owns and operates an apartment complex on the southern side of Weeks Road, with an entrance approximately 540 feet from the subject property. Weeks Road is a dead end and its intersection with State Route 9 provides the only means of ingress and egress to the residents of Whispering Pines and Robert Gardens.

Petitioner Queensbury Holdings LLC (hereinafter Queensbury Holdings) is the owner of a parcel of property located at 925 State Route 9, next door to the subject property and adjacent to its northern boundary line. Queensbury Holdings has a restaurant on its property, as well as a parking lot and private access road connecting to Route 9 at its intersection with Sweet Road (hereinafter the Access Road). ^[2] It is undisputed that this Access Road is owned and maintained by Queensbury Holdings.

On July 7, 2021, respondent Hoffman Development Corporation (hereinafter Hoffman) applied to respondent Town of Queensbury Planning Board (hereinafter the Planning Board) for site plan approval to demolish the existing car wash on the subject property and construct a 6,400 square-foot car wash building in its place, as well as queuing lanes, 18 self-serve vacuum spaces, and 6 employee parking spaces. ^[3] The application proposed two access points for the car wash: (1) the construction of a new access drive to connect the subject property to Weeks Road; and (2) use of Queensbury Holdings' existing Access Road to connect the subject property to State Route 9.

Hoffman contends that it is entitled to use the Access Road pursuant to an April 26, 2005 resolution whereby the Planning Board granted site plan approval to Queensbury Holding's predecessor in title to, inter alia, construct the restaurant now existing on Queensbury Holding's property. In this regard, the site plan attached to the resolution includes under "drawing notes" a statement indicating that "owner shall construct vehicle interconnections to the adjoining properties shown, at the time of redevelopment of those properties" [Resolution No. SP 04-2005, attached as Exhibit "1" to Palumbo Affidavit, at p 5]. The plan then identifies two "possible future site[s]" of the interconnect, one of which is at the rear of Queensbury Holdings' property near the Access Road.

Hoffman initially appeared before the Planning Board relative to the application on August 24, 2021, at which time the proposed site plan was presented by Frank Palumbo - its project manager - in detail. Concerns were expressed relative to, inter alia, traffic safety and stormwater management, with the Planning Board requesting additional information in this regard. On October 15, 2021, Hoffman submitted a revised application which reduced the size of the proposed car wash building to 5,750 square feet, ^[4] as well as included parking and lighting plans and a stormwater pollution prevention plan. A public hearing was thereafter noticed for the Planning Board's November 16, 2021 meeting, at which time counsel for Whispering Pines and Queensbury Holdings, among others, appeared in opposition to the project.

Counsel for Whispering Pines focused primarily on the potential traffic impacts from the proposal, with several members of the Planning Board sharing those concerns. Hoffman hired VHB Engineering, Surveying, Landscape Architecture and Geology, PC (hereinafter VHB) to conduct a traffic impact study, but the study had not yet been completed at the time of the November 16 meeting - so the discussion relative to traffic impacts was tabled pending its completion. Counsel for Queensbury Holdings questioned Hoffman's right to use his client's Access Road under the April 26, 2005 resolution, with the Planning Board instructing him to "contact the Planning Staff as they have access to all... prior documents and plans and [could] provide [him] with any and all information... regarding the history of that" [R1034].

On December 8, 2021, VHB completed its traffic impact study for Hoffman, finding that "[t]he proposed project is expected to have minimal impact on local traffic operations" [R0286]. The report was thereafter reviewed by the Town of Queensbury engineer, who submitted a report to the Planning Board on February 10, 2022 with the following comments:

"16. The estimate of site trips is based on very limited data from the ITE Trip Generation Manual, particularly for the Saturday peak hour as there is only one data study when using the number of car wash tunnels as the independent variable. The use of the facility's square footage yields a trip estimate that is more than 4 times the amount presented in the study (41 trips versus 176 trips.)

"Given the limited data in the ITE manual, local trip data should be presented to verify or modify the estimates in the study with a corresponding update to the analyses....

"17. An evaluation of the internal queuing using the processing times at the pay station and through the car wash should be presented to ensure that the site circulation is sufficient to prevent vehicle queues from extending out on to the side roads [R0577]."

Whispering Pines retained an engineer to review the report as well, with that engineer likewise commenting that the traffic study failed to use "an accurate trip generation estimate" [R580] and further "fail[ed] to provide a queuing analysis" [R0581]. Whispering Pines' engineer also commented that VHB's traffic study report "fail[ed] to include a crash analysis [and] any analysis of sight distance at [the proposed driveway on Weeks Road and [State] Route 9" [R0581].

A public hearing continued on the proposal at the Planning Board's February 15, 2022 meeting, at which time discussion resumed relative to potential traffic impacts. Hoffman advised that its engineer was preparing a response to the Town engineer's February 10, 2022 report, and the Planning Board chose to table that discussion pending receipt of the response. Counsel for Whispering Pines and Queensbury Holdings again appeared, with counsel for Queensbury Holdings stating as follows:

"When we were last here we spoke briefly about the interconnect, and I was a little in the dark at the time about the interconnect because it seems to have been on the map, but there was no, my clients purchased property after the subdivision approval back in 2005 which is where the genesis of the interconnect had arisen. So I spent a lot of time going back over the minutes, historically, to find out where that came from, and it appears that when the initial subdivision application was made by the predecessor in title the interconnect was something that was discussed in the March 2005 meeting, and there was a directive that the applicant make a motion for final approval for the April 2005 meeting to include the interconnect issue as being part of that motion. In reviewing the minutes from the April 2005 meeting it appears that that was not done. There was no mention of the interconnect at that time. There was no motion made to approve the interconnect, but there was on the approved map a designation indicating where the interconnect would be. So it appears that that is where the interconnect received 'approval,' but there was nothing in the minutes to indicate that that was actually done by resolution....

"[S]ubsequent to that, there was a subdivision request in 2011 to divide the lot that my client owned with Red Roof Inn and what was the Outback Steakhouse..., and when that map was approved, there was no mention of the interconnect on that map.... If we set that aside and assume for the sake of argument the interconnect is a legitimate interconnect, then the issue becomes... what is the legitimate use, or the proper use, of the interconnect? The applicant seems to be taking the position that the interconnect provides unfettered access to their property from Route 9 and I'm not sure that the interconnect is defined that accurately. I mean it says

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