| Matter of In-Towne Shopping Ctrs., Co. v Planning Bd. of the Town ofBrookhaven |
| 2010 NY Slip Op 04194 [73 AD3d 925] |
| May 11, 2010 |
| Appellate Division, Second Department |
| In the Matter of In-Towne Shopping Centers, Co.,Respondent, v Planning Board of the Town of Brookhaven,Appellant. |
—[*1] Farrell Fritz, P.C., Uniondale, N.Y. (Anthony S. Guardino and Rachel A. Scelfo of counsel),for respondent.
In a proceeding pursuant to CPLR article 78 to review so much of a determination of thePlanning Board of the Town of Brookhaven dated August 28, 2008, as, after a hearing, grantedthe petitioner's application for certain area variances, site plan approval, and a special permit,upon the condition that it provide a perpetual offer of cross-access and cross-parking, the appealis from (1) a decision of the Supreme Court, Suffolk County (Whelan, J.), entered April 10,2009, and (2) a judgment of the same court entered May 28, 2009, which, upon the decision,granted the petition and annulled so much of the determination as imposed that condition.
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision(see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The petitioner, In-Towne Shopping Centers, Co., applied to the Planning Board of the Townof Brookhaven (hereinafter the Planning Board) for certain area variances, site plan approval,and a special permit for the purpose of constructing additional tenant spaces and a drive-throughfacility at a corner of an existing shopping center which the petitioner owned in the Town ofBrookhaven.
The Planning Board granted the application with the imposition of seven conditions, one ofwhich required the petitioner to "provide a perpetual offer of cross-access and cross-parking withadjacent property in the future" (hereinafter the condition).
The petitioner commenced this CPLR article 78 proceeding to review so much of thePlanning Board's determination as imposed the condition on the ground that, inter alia, the needto impose [*2]the condition was not directly related to thepetitioner's application.
The Supreme Court granted the petition to annul the condition based on its findings that thePlanning Board's imposition of the condition was, inter alia, arbitrary and capricious,unsupported by the evidence, and not directly related to and incidental to the petitioner'sapplication.
"A local planning board has broad discretion in reaching its determination on applications. . . and judicial review is limited to determining whether the action taken by theboard was illegal, arbitrary, or an abuse of discretion" (Matter of Kearney v Kita, 62 AD3d 1000, 1001 [2009]; see Matter of Davies Farm, LLC, vPlanning Bd. of Town of Clarkstown, 54 AD3d 757 [2008]). "When reviewing thedeterminations of a local planning board, courts consider substantial evidence only to determinewhether the record contains sufficient evidence to support the rationality of the Board'sdetermination" (Matter of Kearney v Kita, 62 AD3d at 1001 [internal quotation marksomitted]).
Contrary to the Planning Board's contention, the record lacked sufficient evidence to supportthe rationality of its determination (seeMatter of Richter v Delmond, 33 AD3d 1008, 1010 [2006]; Matter of Marte v Town ofGreenburgh, 13 AD3d 630 [2004]; Matter of Hudson Canyon Constr. v Town ofCortlandt, 289 AD2d 576 [2001]).
In light of the foregoing, we need not reach the Planning Board's remaining contentions.Skelos, J.P., Angiolillo, Leventhal and Roman, JJ., concur.