The opinion
William R. Geiler, J.
This is an action by plaintiff to have this court declare invalid certain requirements of the Huntington Town Planning Board with reference to the filing of a subdivision map known as "Map of Valmont Acres, Section 1.”
The plaintiff is the owner of certain real property located on the southerly side of Route 25 A in Northport, Town of Huntington, Suffolk County, New York. The Huntington Planning Board approved a subdivision map containing 28 building lots filed by the plaintiff and entitled, "Map of Valmont Acres, Section 1.” The approval was conditioned upon plaintiff agreeing to construct approximately 1,150 linear feet of curb and sidewalk along the southerly side of Route 25 A, a State road, running from the subdivision’s sole entrance at Ridings Gate to the intersection of Route 25 A with Middleville Road, and filing the necessary performance bond. The reason advanced by the planning board for this requirement was to insure the safety of the children living in the subdivision who would walk to the Middleville Public School.
All of the houses which were to be constructed in the subdivision would face the interior of the subdivision and would not have direct access to Route 25 A. The plaintiff was required, as another condition for approval of the map, to construct a 10-foot wide walkway providing direct access from the subdivision to the school in question. Thus none of the children residing in the subdivision would have any occasion to use the proposed sidewalk to get to school.
On July 17, 1975, the plaintiff, after submitting a performance bond, requested the planning board to reconsider the *704 curb and sidewalk requirements with reference to Route 25 A, a State highway. The plaintiff submitted a letter dated August 1, 1975 from the Regional Traffic Engineer of the State Department of Transportation to the planning board, which stated the following: "Since driveways will not enter Route 25 A and the curb and sidewalk will not be consistent with the development along the highway we are of the opinion they should not be installed.”
On March 18, 1976 the Director of Planning of the Town of Huntington advised plaintiff by letter that: "The Board denied the request due to concerns about pedestrian safety. Your property is in the vicinity of a public school, and the Board determined that the safety aspects relative to children walking along Route 25 A, outweigh any environmental or aesthetic considerations.”
Was the decision of the defendant planning board arbitrary and capricious?
The reason advanced by the planning board for the requirement of sidéwalks and curbs along 25 A was the "safety” of the school children attending the Middleville Public School. However, defendants’ safety expert testified that the sidewalk rather than serving as a safety factor might create an "attractive hazard” for the school children.
The plaintiff, even if it agreed to install the sidewalks, was unable to comply with the planning board’s requirements because of the refusal of the State Transportation Department to issue a permit. The planning board was aware that sidewalks could not be constructed unless the State issued a permit and was familiar with the position of the State Department of Transportation when it decided plaintiff’s application for a waiver (Highway Law, §§ 54,151).
Furthermore, the authority of a town planning board to require the construction of curbs and sidewalks as a condition precedent to approving a subdivision is set forth in subdivision 1 of section 277 of the Town Law. The authority of the planning board is limited to improvements of streets actually in the subdivision and does not extend to State highways which may be referred to, but are not part of the filed map (Matter of Medine v Burns, 29 Misc 2d 890 ; Matter of Peck-ham Ind. v Boss, 61 Misc 2d 616 , affd 34 AD2d 826 ).
The decision of the planning board denying plaintiff’s waiver application is annulled and the map of Valmont Acres, section 1 is hereby adjudged a final map filing. The perform *705 anee bond is modified so as to delete the construction of curbs and sidewalks along the southerly side of State Route 25 A therefrom.