| Matter of Bagga v Stanco |
| 2011 NY Slip Op 09317 [90 AD3d 919] |
| December 20, 2011 |
| Appellate Division, Second Department |
| In the Matter of Darshan S. Bagga, Appellant, v AngeloStanco, as Chairman of the Planning Advisory Board of the Town of Oyster Bay, et al.,Respondents. |
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Leonard Genova, Town Attorney, Oyster Bay, N.Y. (Matthew M. Rozea of counsel), forrespondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the PlanningAdvisory Board of the Town of Oyster Bay dated April 23, 2009, which, after a hearing, deniedthe petitioner's application for modified site plan approval, the petitioner appeals from ajudgment of the Supreme Court, Nassau County (Adams, J.), dated May 18, 2010, which, uponan order of the same court dated February 9, 2010, denying the petition, dismissed theproceeding.
Ordered that the judgment is reversed, on the law, without costs or disbursements, thepetition is granted, the determination of the Planning Advisory Board of the Town of Oyster Baydated April 23, 2009, is annulled, the matter is remitted to the Planning Advisory Board of theTown of Oyster Bay for the approval of the modified site plan application, and the order ismodified accordingly.
On May 19, 2005, the Planning Advisory Board of the Town of Oyster Bay (hereinafter thePlanning Board) approved the petitioner's site plan application for the construction of a14,727-square-foot, two-story retail building fronting New York State Route 107 in Hicksville.As originally approved, the first floor of the building was to be divided into retail units, and thesecond floor was to be used for storage. In 2008 the petitioner sought approval of a modified siteplan which would allow the second floor of the proposed building to be used for 11 residentialapartments rather than for storage. The property is located in a Neighborhood Business District,which permits residential apartments to be located above retail space. A consulting engineeringcompany retained by the Planning Board to review the modified site plan application found thatthe addition of 11 apartments would add 60 vehicular trips during peak traffic hours, or one morevehicular trip than the previously approved site plan. The consulting engineers also noted that themodified site plan would provide 73 off-street parking spaces, a number which exceeds therequirement of 67 off-street parking spaces under the Town Code of the Town of Oyster Bay, andthat there would be two access driveways with adequate sight distance.
On December 4, 2008, the Nassau County Planning Commission approved the petitioner'smodified site plan, concluding that it conformed with its objective of promoting mixed [*2]use commercial/residential development along arterial roadways,and that approval of the project might encourage redevelopment of other marginal propertiesalong this segment of New York State Route 107. However, following two public hearings, atwhich a number of community residents opposed the petitioner's application for modified siteplan approval on the ground that apartments located over retail stores would attract undesirabletenants, the Planning Board denied the application. In denying the application, the PlanningBoard cited concern over access to the premises, the propensity for excessive traffic congestion,and lack of parking. The petitioner thereafter commenced this CPLR article 78 proceedingseeking review of the Planning Board's determination. The Supreme Court denied the petitionand dismissed the proceeding, concluding, inter alia, that there was a rational basis for thePlanning Board's determination because some of the residents who testified at the public hearingsexpressed concerns over increased traffic and the difficulty of ingress to and egress from aheavily traveled local thoroughfare. The petitioner appeals. We reverse.
A local planning board has broad discretion in deciding applications for site plan approval,and judicial review is limited to determining whether the board's action was illegal, arbitrary, oran abuse of discretion (see Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Valentine v McLaughlin, 87AD3d 1155 [2011]; Matter ofFairway Manor, Inc. v Bertinelli, 81 AD3d 821, 822-823 [2011]). The planning board'sdetermination must be upheld on judicial review if it was not illegal, has a rational basis, and isnot arbitrary and capricious (see Matter of Fairway Manor, Inc. v Bertinelli, 81 AD3d at823; Matter of Kearney v Kita, 62AD3d 1000, 1001 [2009]). "When reviewing the determinations of a local planning board,courts consider substantial evidence only to determine whether the record contains sufficientevidence to support the rationality of the Board's determination" (Matter of Kearney vKita, 62 AD3d at 1001 [internal quotation marks omitted]; see Matter of In-Towne Shopping Ctrs., Co.v Planning Bd. of the Town of Brookhaven, 73 AD3d 925, 926 [2010]).
Here, the record lacks sufficient evidence to support the rationality of the Planning Board'sdetermination. To the contrary, the record contradicts the community's concerns over trafficcongestion, access to the property, and parking which were cited by the Planning Board asgrounds for denying the petitioner's modified site plan application (see Matter of SCI FuneralServs. of N.Y. v Planning Bd. of Town of Babylon, 277 AD2d 319, 320 [2000];Bongiorno v Planning Bd. of Inc. Vil. of Bellport, 143 AD2d 967, 968 [1988]; Matterof Eastern N.Y. Props. v Cavaliere, 142 AD2d 644, 646 [1988]; Syracuse Bros. vDarcy, 127 AD2d 588, 589 [1987]). Moreover, the petitioner's modified site plan applicationfully complies with the requirements of the Town Code of the Town of Oyster Bay, and is apermitted use within the zoning district in which the property is situated. Under thesecircumstances, the Planning Board's determination was improperly based upon generalizedcommunity opposition (see Matter of Bower Assoc. v Planning Bd. of Town of PleasantVal., 289 AD2d 575 [2001]; Matter of Hudson Canyon Constr. v Town of Cortlandt,262 AD2d 484, 485 [1999]; Bongiorno v Planning Bd. of Inc. Vil. of Bellport, 143 AD2dat 968; see also Matter of Richter vDelmond, 33 AD3d 1008, 1009 [2006]). Accordingly, the Supreme Court should havegranted the petition and annulled the Planning Board's determination. Skelos, J.P., Balkin, Engand Sgroi, JJ., concur.