The opinion of the court was delivered by: GRIESA
On May 28, 1981 the court granted defendants' motion to dismiss this case. The ground was the res judicata effect of a decision in the state Supreme Court in an Article 78 proceeding.
Subsequently, plaintiffs moved for reargument. The contention was that the ruling of May 28, 1981 involved an improper application of Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980). Following the filing of the motion for reargument there was a further hearing and submission of papers, to clarify the issues.
The motion for reargument is granted. Upon reargument, it is again determined that defendants' motion for summary judgment should be granted and the action should be dismissed. Plaintiffs' claim is barred by res judicata. Alternatively, it is abundantly clear that plaintiffs have no valid case on the merits.
Plaintiffs allege violation of due process rights granted by the Fifth and Fourteenth Amendments. The claim arises from the action of the Planning Board of the Town of Mamaroneck approving a residential subdivision. Included in the approved plan was a road which was to run near the rear property lines of plaintiffs' homes. Plaintiffs complain of interference with the safety of their families and diminution of their property values.
In connection with this claim plaintiffs refer to Article IV, Section 8E of the Subdivision Regulations of the Town of Mamaroneck, which states:
"The subdivider shall observe the following general requirements and principles of land subdivisions:
E. Each block shall be planned to provide two rows of lots, but irregularly shaped blocks indented by cul-de-sac streets may be considered to be acceptable when designed in a manner acceptable to the Planning Board."
Plaintiffs also refer to Article IV, Section M of the same regulations, which provides:
"Variations of the general requirements above outlined may be permitted by the Planning Board on application to the Planning Board when in its judgment, special factors warrant such a variation."
Plaintiffs contend that, according to Section 8E, there must be a second row of lots behind their own lots before there can be any road. Under the approved plan no such second row of lots is provided for. Consequently, plaintiffs argue that the Planning Board action violates Section 8E.
The constitutional issue is said to arise because it is claimed that the Planning Board must have granted a variance under Section M (although, in fact, no formal variance was granted). Plaintiffs contend that the Planning Board failed to give notice of any "special factors" it contemplated relying on in granting such a variance, and that there were no formal findings of such special factors which created a proper record.
Plaintiffs are residents of the Town of Mamaroneck. They object to a planned subdivision of 29 acres of land to be named "Marbourne Meadows." The plan was approved by the Planning Board on December 13, 1978. Approval followed several public hearings.
The first Planning Board hearing took place on June 14, 1978. At this meeting Marbourne Associates, the developer, presented a plan which provided for two access roads, neither of which adjoined plaintiffs' property. At this meeting the Board asked ...