| Matter of Zupa v Board of Trustees of Town of Southold |
| 2008 NY Slip Op 07132 [54 AD3d 957] |
| September 23, 2008 |
| Appellate Division, Second Department |
| In the Matter of Mary S. Zupa et al., Appellants, v Board ofTrustees of Town of Southold et al., Respondents. |
—[*1] Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead, N.Y. (Frank A. Isler, PhilSiegel, and Julie L. Yodice of counsel), for respondent Board of Trustees of Town of Southold. Esseks, Hefter & Angel, LLP, Riverhead, N.Y. (Stephen R. Angel and Anthony C. Pasca ofcounsel), for respondent Paradise Point Association, Inc.
In a proceeding pursuant to CPLR article 78 to review, inter alia, a determination of theBoard of Trustees of Town of Southold dated September 21, 2005, granting the application ofParadise Point Association, Inc., for a wetlands permit to replace certain dock facilities, thepetitioners appeal, as limited by their brief, from so much of a judgment of the Supreme Court,Suffolk County (Burke, J.), entered February 28, 2007, as denied that branch of the petitionwhich was to annul the determination dated September 21, 2005, and dismissed that part of theproceeding.
Ordered that the judgment is affirmed insofar as appealed from, with one bill of costs.
Contrary to the petitioners' contention, the substantial evidence standard of review does notapply to the administrative determination at issue, since it was made after informational publichearings, as opposed to a quasi-judicial evidentiary hearing (see Matter of Scherbyn vWayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757-758 [1991]; Matterof Halperin v City of New Rochelle, 24 AD3d [*2]768[2005]). Thus, the question before us is whether the determination was affected by an error oflaw, or was arbitrary and capricious or an abuse of discretion, or was irrational (seeCPLR 7803 [3]; Matter of Halperin vCity of New Rochelle, 24 AD3d 768 [2005]).
Contrary to the petitioners' contention, the determination of the Board of Trustees of Town ofSouthold (hereafter the Trustees) granting the application of Paradise Point Association, Inc.(hereafter the Association), for a wetlands permit to replace certain docking facilities at a certainmarina, was neither arbitrary nor capricious, but instead, was a rational decision, because theapproved replacement docking facility is smaller than the current one, consolidates two docksinto one with a reduction in boat slips, locates the dock further away from the petitioners'property, and requires a configuration that improves the current navigability of the subjectwaterway. Accordingly, the Supreme Court properly denied that branch of the petition which wasto annul the determination in question, and properly dismissed that part of the proceeding.
The petitioners' remaining contentions are either raised for the first time on appeal, and thusnot properly before this Court, or without merit. Mastro, J.P., Skelos, Covello and Leventhal, JJ.,concur.