| Matter of Smyles v Board of Trustees of Inc. Vil. ofMineola |
| 2014 NY Slip Op 05991 [120 AD3d 822] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Arthur Smyles et al.,Appellants, v Board of Trustees of Incorporated Village of Mineola et al.,Respondents. |
Farrell Fritz, P.C., Uniondale, N.Y. (Charlotte A. Biblow and Rachel A. Scelfo ofcounsel), for appellants.
Spellman Rice Schure Gibbons McDonough Polizzi & Truncale, LLP, GardenCity, N.Y. (Peter S. Trentacoste and Matthew C. Schlesinger of counsel), forrespondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Boardof Trustees of the Incorporated Village of Mineola, dated October 11, 2012, which, aftera hearing, denied the petitioners' application for a special use permit, the petitionersappeal from (1) an order of the Supreme Court, Nassau County (Asarch, J.), enteredFebruary 25, 2013, which denied the petition, and (2) a judgment of the same court(Cozzens, Jr., J.), entered March 25, 2013, which, upon the order, is in favor of therespondents and against them dismissing the proceeding.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents.
The appeal from the intermediate order must be dismissed since an intermediateorder made in a CPLR article 78 proceeding is not appealable as of right (seeCPLR 5701 [b] [1]; Matter ofSeraydar v Three Vil. Cent. School Dist., 90 AD3d 936 [2011]), and anypossibility of taking a direct appeal therefrom terminated with the entry of the judgmentin the proceeding (see Matter of Aho, 39 NY2d 241, 248 [1976]; Matter of Westchester CountyCorrection Officers Benevolent Assn., Inc. v County of Westchester, 71 AD3d1040 [2010]). The issues raised on appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501[a]).
"Unlike a variance which gives permission to an owner to use property in a mannerinconsistent with a local zoning ordinance, a special exception gives permission to useproperty in a way that is consistent with the zoning ordinance, although not necessarilyallowed as of right" (Matter of Retail Prop. Trust v Board of Zoning Appeals ofTown of Hempstead, 98 NY2d 190, 195 [2002] [citation omitted]). The burden ofproof on an applicant seeking a special exception, commonly [*2]known as a special use permit, is lighter than that carried byan applicant for a zoning variance (see Matter of Kabro Assoc., LLC v Town of Islip Zoning Bd. ofAppeals, 95 AD3d 1118 [2012]; Matter of White Castle Sys., Inc. v Board of Zoning Appeals ofTown of Hempstead, 93 AD3d 731 [2012]). A denial of a special use permitmust be supported by evidence in the record and may not be based solely uponcommunity objection (seeMatter of Green 2009, Inc. v Weiss, 114 AD3d 788 [2014]; Matter of White Castle Sys., Inc. vBoard of Zoning Appeals of Town of Hempstead, 93 AD3d 731 [2012]).However, where evidence supporting the denial exists, deference must be given to thediscretion of the authorized board, and a court may not substitute its own judgment forthat of the authorized board, even if a contrary determination is supported by the record(see Matter of Retail Prop. Trust v Board of Zoning Appeals of Town ofHempstead, 98 NY2d at 196; Matter of Moy v Board of Town Trustees of Town of Southold,61 AD3d 763 [2009]; Matter of MacGregor v Derevlany, 7 AD3d 624 [2004];Matter of Leon Petroleum v Board of Trustees of Inc. Vil. of Mineola, 309 AD2d804 [2003]).
Here, evidence in the record, including testimony by experts in traffic and real estateand by neighboring property owners, supports the findings of the Board of Trustees ofthe Incorporated Village of Mineola (hereinafter the Board) that the proposed expansionof the subject day care facility into vacant retail space would result in a dangerous trafficsituation, an over-intensification of land use with respect to available parking, and ahazard with respect to the provision of emergency services. Contrary to the petitioners'contention, the Board was entitled to base its decision upon, among other things, itsmembers' personal knowledge and familiarity with the community (see Matter of Russia House atKings Point, Inc. v Zoning Bd. of Appeals of Vil. of Kings Point, 67 AD3d1019 [2009]; Matter ofThirty W. Park Corp. v Zoning Bd. of Appeals of City of Long Beach, 43 AD3d1068 [2007]). Accordingly, the Board's determination to deny a special use permiton the ground that it would not be in the best interests of the health, safety, and welfareof the community was supported by the record, and was not arbitrary and capricious.
Additionally, the Board's alleged failure to comply with the time limitations ofVillage Law § 7-725-b (6) does not mandate the annulment of itsdetermination (see Matter ofFrank v Zoning Bd. of Town of Yorktown, 82 AD3d 764 [2011]; cf. Matter of Barsic v Young,22 AD3d 488, 490 [2005]). The appropriate remedy for the Board's alleged failureto act would have been the commencement of a special proceeding to compel the Boardto issue a determination on the petitioners' application (see Matter of Troy Sand &Gravel Co., Inc. v Town of Nassau, 89 AD3d 1178 [2011]; Nyack Hosp. vVillage of Nyack Planning Bd., 231 AD2d 617 [1996]). Since the Board ultimatelyissued such a determination, the petitioners' contention in this regard has been renderedacademic.
The petitioners' remaining contention is without merit (see Quinones v Board ofMgrs. of Regalwalk Condominium I, 242 AD2d 52 [1998]; People v Town ofClarkstown, 160 AD2d 17 [1990]). Mastro, J.P., Dickerson, Cohen and Miller, JJ.,concur.