| Matter of Greencove Assoc., LLC v Town Bd. of the Town of N.Hempstead |
| 2011 NY Slip Op 06559 [87 AD3d 1066] |
| September 20, 2011 |
| Appellate Division, Second Department |
| In the Matter of Greencove Associates, LLC,Petitioner, v Town Board of the Town of North Hempstead et al.,Respondents. |
—[*1] Richard S. Finkel, Town Attorney, Town of North Hempstead, Manhasset, N.Y. (Simone M.Freeman of counsel), for respondent Town Board of the Town of North Hempstead. John Ciampoli, County Attorney, Mineola, N.Y. (Robert F. Van der Waag of counsel), forrespondent Nassau County Planning Commission.
Proceeding pursuant to CPLR article 78 to review so much of a determination of the TownBoard of the Town of North Hempstead, dated June 8, 2010, as, after a hearing, approved thepetitioner's site plan application subject to the condition that the size of the proposed structure bereduced to approximately 6,800 square feet.
Adjudged that the determination is confirmed insofar as reviewed, the petition is denied, andthe proceeding is dismissed on the merits, with one bill of costs to the respondents.
The petitioner is the owner of a 5.26 acre parcel of property that is improved by acommercial shopping center. In 1959, when a zoning change permitting the construction of theoriginal shopping center was approved, a restriction was imposed requiring the maintenance of alandscaped buffer along the portion of the property that borders Town Path Road, which isadjacent to a residential neighborhood. In 1999, the Town Board of the Town of NorthHempstead (hereinafter the Town Board) approved the petitioner's site plan application to expandthe shopping center, subject, among other things, to conditions that required certainimprovements to the landscaped buffer. Following this 1999 expansion, the landscaped buffermeasured, on average, 22 feet in width.
In 2010, the petitioner, seeking to further expand the shopping center, submitted anapplication for approval to construct a new 10,000 square foot structure in the southwest cornerof the property, the portion that borders Town Path Road. As proposed, the new structure wouldencroach on the existing landscaped buffer, reducing it, in the area directly behind the building,to a width of four or five feet. The application was reviewed, pursuant to General Municipal Law§ [*2]239-m, by the Nassau County Planning Commission(hereinafter NCPC), which recommended, among other things, a modification reducing the sizeof the new structure to approximately 6,800 square feet. This modification would "enable thestructure to better fit into the irregular-shaped site and be relocated further from the property linewhile maintaining the existing buffer, in accordance with the conditions placed on the property in1999." After a public hearing, the Town Board approved the site plan application subject, amongother things, to this NCPC modification. The petitioner then commenced the instant CPLR article78 proceeding seeking to have this condition stricken and annulled.
The Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804(g), since the determination to be reviewed was not made after a hearing held pursuant todirection of law at which evidence was taken (see CPLR 7803 [4]; Matter of Sasso vOsgood, 86 NY2d 374, 384 [1995]; Matter of Navaretta v Town of Oyster Bay, 72 AD3d 823, 824[2010]; Matter of Halperin v City ofNew Rochelle, 24 AD3d 768, 769 [2005]). Accordingly, the determination is not subjectto substantial evidence review. Rather, the question before us is "whether the determination wasaffected by an error of law, or was arbitrary and capricious or an abuse of discretion, or wasirrational" (Matter of Zupa v Board ofTrustees of Town of Southold, 54 AD3d 957, 957 [2008]; see CPLR 7803 [3];Matter of Halperin v City of New Rochelle, 24 AD3d at 770). Nevertheless, since the fulladministrative record is before us, in the interest of judicial economy, we will decide theproceeding on the merits (see Matter of Navaretta v Town of Oyster Bay, 72 AD3d at824; Matter of Silvera v Town ofAmenia Zoning Bd. of Appeals, 33 AD3d 706, 707 [2006]; Matter of Halperin vCity of New Rochelle, 24 AD3d at 772-773).
The petitioner's challenge to the condition requiring a reduction in the size of the proposedbuilding is without merit. Town Law § 274-a (2) (a) authorizes a town board to review siteplans which describe proposed land use elements, including those elements which relate to"parking, means of access, screening, signs, landscaping, architectural features, location anddimensions of buildings, adjacent land uses and physical features meant to protect adjacent landuses as well as any additional elements specified by the town board in such zoning ordinance orlocal law" (Town Law § 274-a [2] [a]; see Matter of Home Depot, U.S.A. v Town Bd. of Town of Hempstead,63 AD3d 938, 939 [2009]). The Code of the Town of North Hempstead provides that, indetermining whether to approve, approve with modifications, or disapprove a site plan, the TownBoard shall consider, among other things, the "[o]verall impact on the neighborhood, includingcompatibility of design considerations and adequacy of screening from residential properties"(Code of the Town of North Hempstead § 70-219 [E] [1]; [B]).
Contrary to the petitioner's contentions, the contested condition was within the Town Board'spower to impose and was not affected by an error of law, arbitrary and capricious, an abuse ofdiscretion, or irrational. "[A] condition may be imposed upon property so long as there is areasonable relationship between the problem sought to be alleviated and the applicationconcerning the property" (Matter ofInternational Innovative Tech. Group Corp. v Planning Bd. of Town of Woodbury, N.Y., 20AD3d 531, 533 [2005]; Matter of Mackall v White, 85 AD2d 696 [1981]). Here, thecontested condition was a reasonable means of assuring that the existing landscaped buffer,which was designed to screen the adjacent residential neighborhood from the effects of theshopping center, would be preserved (see Matter of International Innovative Tech. GroupCorp. v Planning Bd. of Town of Woodbury, N.Y., 20 AD3d at 533; Matter of Koncelikv Planning Bd. of Town of E. Hampton, 188 AD2d 469, 470 [1992]). Although the proposed10,000 square foot building was dimensionally code compliant (see generally Moriarty vPlanning Bd. of Vil. of Sloatsburg, 119 AD2d 188, 191 [1986]), a structure of such sizecould not be placed into the southwest corner of the lot without encroaching on the existingbuffer. Accordingly, the determination must be confirmed insofar as reviewed, and the petitionmust be denied and the proceeding dismissed. Mastro, J.P., Angiolillo, Chambers and Cohen, JJ.,concur.