GUILDERLAND — A restricted subdivision proposal by a town official’s relative, but opposed by another town official, may be headed to court instead of the planning board.

The applicant, himself, notified the planning department that the requested subdivision was restricted. The planning board denied the request because of the deed restriction.

Daniel Cleary and his wife, Maria, applied to subdivide two acres on Veeder Road into two lots. Cleary is the brother of planning board member Michael Cleary, who recused himself from the discussion.

Daniel and Maria Cleary purchased the property from her father, Joseph Giuffre, who subdivided the property in 1987 when further subdivisions were restricted. The Clearys proposed to the planning board last week creataing a keyhole lot on the property that has public water but not public sewer access.

Planning Board Attorney Linda Clark, who is the Clearys’ neighbor, recused herself from the board and sat with her husband.

“We oppose the application that’s before you,” Clark said. She said that the minutes of the planning board meeting from Dec. 9, 1987 described the deed restrictions that were placed on Giuffre’s property.

“There’s nothing vague or hidden about this deed restriction,” Clark said.

Cleary said that no restriction was noted on online or in-person records, and that his attorney could not find a restriction on the title. The only note about the subdivision restriction was found on a subdivision map, he said.

“We couldn’t find it, either,” said attorney Bob Feller, who acted as planning board attorney. “Is [the map] adequate to put buyers on notice?”

He said that the issue before the board was not whether or not a deed restriction exists, but if the buyers had proper notice.

  “You’ve got a problem with your title, you go get a declaratory judgment,” Clark said. “The subdivider had an obligation to file, had an incentive not to file it. I’m here because I have to be. Her father told her there was a restriction. I will say that in a court of law.”

Maria Cleary, who sat in the audience, denied that she and her husband knew of the restriction before they bought the property, and left before the board gave a decision.

“She’s bullying us,” Cleary told The Enterprise, saying that Clark calls them at home.

Clark said that the board had neither the resources nor the burden to deal with the request.

“This board has to deal with it. Everybody has the right to come in and apply,” said planning board Chairman Stephen Feeney.

Feller agreed with Clark.

“The actual notice issue, because there is a dispute, is not something the board should take on. It effectively comes down to enforcing one of our own conditions. If a judge [says] it’s not enforceable, then so be it,” Feller said.

“I think the intent in 1987 is very clear,” said board member Paul Caputo. “The board did not want this property to be subdivided.”

Feller, however, noted that “there is nobody in the real property business who would find this restriction. I advise against enforcing a condition against an innocent purchaser.”

“If there was actual notice, nothing else matters,” Clark said. “It is the end of the road.”

The board voted unanimously to deny the request. Feller suggested that the board clearly state that the denial was because of the deed restriction, so that the Clearys can have a sufficient reason to go to court, if they so choose.

Board member Terry Coburn asked for and received clarification that, even if there had been no deed restriction, the planning board would have been free to deny the application.

“Veeder Road is no bigger than it was 20 years ago, and there’s a septic,” she said.

Other business

In other business, the planning board:

— Gave final approval to Woodsfield Estates on Lydius Street for a 46-lot clustered subdivision on 107 acres. Joe Bianchine of ABD Engineering said that two keyhole lots were created.

“We will be constructing a sidewalk to DeCaprio Park,” he said. The 82-acre green space will be donated to the town and managed by the Albany Pine Bush Commission, Bianchine said.

The board said that the deeds must note the nearby sportsmen club, and the occasional burn management used in the pine bush. Deeds must also suggest that purchasers use native plants in landscaping; and

— Approved Phil Roberts’s site plan to build a garage at his 1971 Western Ave. property that is zoned for light business. Currently, Roberts has some trucks and equipment under a portable plastic shed.

“I’d like to get everything under roof and clean up the blacktop,” Roberts said.