| Matter of Kearney v Kita |
| 2009 NY Slip Op 04238 [62 AD3d 1000] |
| May 26, 2009 |
| Appellate Division, Second Department |
| In the Matter of Margaret A. Kearney,Respondent, v Richard Kita et al., Appellants. |
—[*1] Forchelli, Curto, Crowe, Deegan, Schwartz, Mineo & Cohn, LLP, Mineola, N.Y. (Jeffrey D.Forchelli and Richard C. Goldberg of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the respondentsRichard Kita, Kathryn Caulfield, Timothy Fay, Louis Laurino, and Peter Muscianisi, constitutingthe Planning Board of the Incorporated Village of Bayville, dated September 25, 2007, which,after a hearing, denied the petitioner's application to subdivide her property into two building lotsand construct a residential dwelling on one of the lots, Richard Kita, Kathryn Caulfield, TimothyFay, Louis Laurino, and Peter Muscianisi appeal from a judgment of the Supreme Court, NassauCounty (Cozzens, J.), entered April 15, 2008, which granted the petition to the extent of vacatingand annulling the determination and directing that the petitioner's application for subdivision beapproved, and denied as premature that branch of the petition which was to direct the BuildingDepartment of the Incorporated Village of Bayville to issue a building permit.
Ordered that the judgment is reversed, on the law, with costs, the determination is confirmed,the petition is denied, and the proceeding is dismissed on the merits.
A local planning board has broad discretion in reaching its determination on applicationssuch as the petitioner's, and judicial review is limited to determining whether the action taken bythe board was illegal, arbitrary, or an abuse of discretion (see Matter of Ifrah v Utschig,98 NY2d 304, 308 [2002]; Matter ofDavies Farm, LLC v Planning Bd. of Town of Clarkstown, 54 AD3d 757, 758 [2008];Matter of Gallo v Rosell, 52 AD3d514, 515 [2008]; Matter ofHalperin v City of New Rochelle, 24 AD3d 768 [2005]). The planning board'sdetermination "should be sustained upon judicial review if it was not illegal, has a rational basis,and is not arbitrary and capricious" (Matter of Gallo v Rosell, 52 AD3d at 515; seeMatter of Sasso v Osgood, 86 NY2d 374, 384 [1995]; Matter of Rivero v Voelker, 38 AD3d 784, 785 [2007]; Matterof Halperin v City of New Rochelle, 24 AD3d at 772). When reviewing the determinationsof a local planning board, " 'courts consider substantial evidence only to determine whether therecord contains sufficient evidence to support the rationality of the Board's determination' "(Matter of Gallo v Rosell, 52 AD3d at 515, quoting Matter of Sasso v Osgood,86 NY2d at 385). Here, the actions of the Planning Board of the Incorporated Village of Bayville(hereinafter the Planning Board) in denying the petitioner's application to subdivide her parcelhad a rational basis, were not arbitrary or capricious, and were not [*2]illegal. The petitioner's property failed to satisfy the requirementsof Local Law No. 11-1985, which required, for parcels in the subject zoning district, inter alia, aminimum lot size of 7,500 square feet. In support of her application, the petitioner relied onLocal Law No. 12-1985, which permitted the subdivision of a residential parcel into lots that didnot satisfy the requirements of Local Law No. 11-1985 if "the owner, as of September 30, 1985the date of enactment of such Local Law . . . , should own, whether in single orseparate ownership or otherwise, on said September 30, 1985, an unimproved building lotadjacent to said improved residential lot or parcel." The Planning Board's determination that thesubject parcels did not satisfy the requirements of Local Law No. 12-1985 so as to qualify forthat section's applicability had a rational basis and was not arbitrary or capricious. Accordingly,the petition should have been denied.
In light of our determination, we need not address the Planning Board's remainingcontention. Spolzino, J.P., Angiolillo, Dickerson and Hall, JJ., concur.