Lake St. Granite Quarry, Inc. v. Town/Village Harrison

106 A.D.3d 918

966 N.Y.S.2d 123

2013 N.Y. Slip Op. 03487

In the Matter of LAKE STREET GRANITE QUARRY, INC., appellant,

v.TOWN/VILLAGE OF HARRISON, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

May 15, 2013.

Shamberg Marwell & Hollis, P.C., Mount Kisco, N.Y. (John S. Marwell, Diana Bunin Kolev, and Megan K. Collins of counsel), for appellant.

Joseph A. Maria, P.C., White Plains, N.Y., for respondents.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.

In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Town Board of the Town/Village of Harrison dated January 20, 2011, which, after a public hearing, confirmed a stop work order issued in connection with excavation and regrading on the petitioner/plaintiff's property, and action for a judgment declaring that the petitioner/plaintiff has a vested right to continue its quarry operation as a nonconforming use and that the excavation and regrading permit requirements of Chapter 133 of the Code of the Town/Village of Harrison are unconstitutional as applied to certain property owned by the petitioner/plaintiff, the petitioner/plaintiff appeals from a judgment of the Supreme Court, Westchester County (Lorenzo, J.), entered September 8, 2011, which, in effect, dismissed the proceeding/action.

ORDERED that the judgment is modified, on the law, by deleting the provisions thereof, in effect, dismissing the causes of action for a declaratory judgment; as so modified, the judgment is affirmed, without costs or disbursements, the causes of action for a declaratory judgment are reinstated and severed, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings on those causes of action.

The petitioner/plaintiff, Lake Street Granite Quarry, Inc. (hereinafter Lake Street), is the owner of real property located in the Town/Village of Harrison (hereinafter the Town), and that property allegedly has been used as a quarry since 1922. On October 13, 2009, the Town Building Inspector issued a stop work order becauseexcavation and regrading was taking place on the subject property without a permit. Lake Street filed an appeal from the stop work order with the Town Board, and the Town Board, after conducting a public hearing, confirmed the stop work order.

As mandated by the Town Code, an appeal from the stop work order was properly made to the Town Board ( see Town/Village of Harrison Code § 133–19[C] [2] ), and in deciding to confirm the order, the Board was acting in its plenary administrative capacity ( see Bailey v. Smith, 75 A.D.2d 573, 426 N.Y.S.2d 586). Under these circumstances, the applicable standard of review pursuant to CPLR 7803(3) is whether a determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion ( see Matter of Baker v. Village of Elmsford, 70 A.D.3d 181, 187, 891 N.Y.S.2d 133;Matter of Moy v. Board of Town Trustees of Town of Southold, 61 A.D.3d 763, 877 N.Y.S.2d 186;Matter of Zupa v. Board of Trustees of Town of Southold, 54 A.D.3d 957, 864 N.Y.S.2d 142;Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768, 809 N.Y.S.2d 98). The Supreme Court properly concluded that the Town Board's determination was not illegal, affected by an error of law, arbitrary and capricious, or an abuse of discretion. Lake Street did not challenge the Building Inspector's determination that excavation and regrading were occurring on the subject property at the time the stop work order was issued, and it did not demonstrate that the excavation and regrading permit requirements of Chapter 133 of the Code of the Town/Village of Harrison should not be applied to it or the prohibited work being performed on the property. Accordingly, the Supreme Court properly denied those branches of the petition/ complaint which were pursuant to CPLR article 78, inter alia, to...