New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Matter of Joseph Grogan v. Gerald Wright

This Article 78 case was brought about to review a determination of the Town of Hempstead Board of Appeals granting Shawn Pobiner with a parking space variance and special permit. The petitioner appealed the judgment of the Supreme Court which denied the petition and dismissed the proceeding.

The Court feels that the Board appropriately weighed the facts set forth by law and the determination to conditionally grant the application was supported by evidence and not arbitrary and capricious. The granting of the application would not be inconsistent with the character of the surrounding neighborhood nor would it adversely affect nearby properties or the environmental conditions in the area.

Accordingly, the Supreme Court ordered the judgment affirmed, with costs.

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Matter of Woodland Community Association v Planning Board of Town of Shandaken

This article 78 appeal was brought against a judgment dismissing petitioners’ application to review a determination of respondent Planning Board of the Town of Shandaken granting respondent Good Water Corporation’s application for site plan approval and a special use permit.

In 2006, respondent Planning Board approved a special use permit to Good Water Corporation for the proposal to collect and haul away water to be sold for non-potable uses such as filling swimming pools. Petitioner, Woodland Community Association, in an article 78 proceeding sought to have the Planning Board’s resolution annulled. The Supreme Court dismissed the petition which prompted this appeal by petitioners.

The Court agrees with petitioner’s argument that the Planning Board lacked jurisdiction to determine the water collection was a special use permit. The Town Zoning Code only identifies “water bottling and related uses” as being relevant to a special use permit. Good Water’s proposed use did not involve the bottling of water at any location. Only the Zoning Board of Appeals has the authority to interpret the Code’s provisions and the Code expressly states that a special use not specifically listed is prohibited unless deemed a similar use by the ZBA. Thus, the Planning Board had no authority to approve Good Water’s application for a special use permit.

Accordingly, the Supreme Court ordered the judgment reversed, without costs, petition granted, and matter remitted to respondent for further proceedings not inconsistent with Court’s decision.

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Matter of Friends of Stanford Home v Town of Niskayuna

Article 78 appeal from a judgment which granted petitioner’s application to annul a determination of respondent Town Board of the Town of Niskayuna issuing a special use permit to respondent Highbridge Development BR, LLC.

Petitioners filed this Article 78 proceeding to annul the negative declaration and the special use permit for Standford Crossings, and to gain injunctive relief prohibiting approval or further development of the State Street site. Supreme Court granted the petition which led to Highbridge and respondent LJC Properties, LLC’s appeal.

Petitioners’ argument is that contingencies in the contract of sale for the State Street property establish a nexus between the two projects. Respondents contend that the State Street and Consaul Road projects are unrelated actions with independent utility and that the Town Board did not impermissibly segment review of the two projects.

The Court sides with respondents and feels that the contractual contingencies, standing alone, do not create a geographic or environmental interrelationship between the two projects and that the contractual link between the otherwise independent actions is not sufficient to establish that they are part of an overall plan of development requiring cumulative review.

Accordingly, the Supreme Court ordered that the judgment is reversed, without costs, and petition dismissed.

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