Marcus v. Planning Bd. of the Vill. of Wesley Hills

199 A.D.3d 1007

154 N.Y.S.3d 822 (Mem)

In the Matter of Neil MARCUS, appellant,

v.PLANNING BOARD OF the VILLAGE OF WESLEY HILLS, et al., respondents.

2017–05963, 2017–12184

Index No. 6325/10

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

Argued—September 14, 2021

November 24, 2021

Alan McGeorge, Nanuet, NY, for appellant.

Steven Habiague, Rhinebeck, NY, for respondents.

LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, BETSY BARROS, LARA J. GENOVESI, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, to review two determinations of the Planning Board of the Village of Wesley Hills, both dated May 26, 2010, granting the applications of the respondent Rockland Tree Expert, Inc., for a special use permit and site plan approval, respectively, the petitioner appeals from (1) a judgment of the Supreme Court, Rockland County (Sherri L. Eisenpress, J.), dated April 7, 2017, and (2) an order of the same court dated October 4, 2017. The judgment, in effect, denied those branches of the amended petition which were to review the determinations dated May 26, 2010, and dismissed the proceeding. The order, insofar as appealed from, upon reargument, adhered to the original determination in the judgment dated April 7, 2017.

ORDERED that the judgment is reversed, on the law, without costs or disbursements, those branches of the amended petition which were to review the determinations of the Planning Board of the Village of Wesley Hills dated May 26, 2010, granting the applications of the respondent Rockland Tree Expert, Inc., for a special use permit and site plan approval, respectively, are granted, those determinations are annulled, the order dated October 4, 2017, is vacated, and the matter is remitted to the Planning Board of the Village of Wesley Hills for the issuance of new determinations denying the applications of the respondent Rockland Tree Expert, Inc., for a special use permit and site plan approval; and it is further,

ORDERED that the appeal from the order dated October 4, 2017, is dismissed as academic in light of our determination on the appeal from the judgment, without costs or disbursements.

The respondent Rockland Tree Expert, Inc., doing business as Ira Wickes, Arborist (hereinafter Wickes), operates a plant nursery and arborist business on a parcel of real property (hereinafter the premises) located in the R–35 zoning district of the Village of Wesley Hills. On May 26, 2010, the Planning Board of the Village of Wesley Hills (hereinafter the Planning Board) granted a special use permit to Wickes to conduct an arborist service and landscaping services, and to operate a wholesale nursery on the premises, and approved a site plan for the premises. The petitioner subsequently commenced this CPLR article 78 proceeding, inter alia, challenging these determinations. In a judgment dated April 7, 2017, the Supreme Court, in effect, denied those branches of the amended petition and dismissed the proceeding. The petitioner appeals.

A use permitted by a special use permit is a use that has been found by the local legislative body to be appropriate for the zoning district and "in harmony with the general zoning plan and will not adversely affect the neighborhood" ( Matter of North Shore Steak House v. Board of Appeals of Inc. Vil. of Thomaston, 30 N.Y.2d 238, 243, 331 N.Y.S.2d 645, 282 N.E.2d 606 ). The permit must be granted if the application satisfies the criteria set forth in the zoning law (see Matter of Juda Const., Ltd. v. Spencer, 21 A.D.3d 898, 900, 800 N.Y.S.2d 741, citing Matter of Pleasant Val. Home Constr. v. Van Wagner, 41 N.Y.2d 1028, 1029, 395 N.Y.S.2d 631, 363 N.E.2d 1376 ). " ‘Failure to meet any one of the conditions set forth in the ordinance is ... sufficient basis upon which the zoning authority may deny the permit application’ " ( Matter of Muller v. Zoning Bd. of Appeals Town of Lewisboro, 192 A.D.3d 805, 807, 144 N.Y.S.3d 198, quoting Matter of Wegmans Enters. v. Lansing, 72 N.Y.2d 1000, 1001–1002, 534 N.Y.S.2d 372, 530 N.E.2d 1292 ; see Matter of Tandem Holding Corp. v. Board of Zoning Appeals of Town of Hempstead, 43 N.Y.2d 801, 802, 402 N.Y.S.2d 388, 373 N.E.2d 282 ). A "zoning board ‘does not have authority to waive or modify any conditions set forth in the ordinance’ " ( Matter of Muller v. Zoning Bd. of Appeals Town of Lewisboro, 192 A.D.3d at 807, 144 N.Y.S.3d 198, quoting Matter of Dost v. Chamberlain–Hellman, 236 A.D.2d 471, 472, 653 N.Y.S.2d 672 ; see Matter of Navaretta v. Town of Oyster Bay, 72 A.D.3d 823, 825, 898 N.Y.S.2d 237 ). Judicial review of a determination...