SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT
January 5, 2010
IN THE MATTER OF KAYWOOD PROPERTIES, LTD., ET AL., RESPONDENTS,
M. CECIL FORTE, ETC., ET AL., APPELLANTS.
In a proceeding pursuant to CPLR article 78 to review a determination of the Planning Board of the Town of Brookhaven dated May 1, 2006, which denied the petitioners' application for subdivision approval, the appeal is from (1) a decision of the Supreme Court, Suffolk County (Baisley, J.), dated April 10, 2008, and (2) a judgment of the same court dated July 28, 2008, which, upon the decision, granted the petition to the extent of annulling the determination and remitting the matter to the Planning Board of the Town of Brookhaven for approval of the petitioners' site plan application, subject to completion of the environmental review process required by the State Environmental Quality Review Act (ECL art 8) and such reasonable conditions as the appellants may impose.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
REINALDO E. RIVERA, J.P., HOWARD MILLER, JOHN M. LEVENTHAL and CHERYL E. CHAMBERS, JJ.
(Index No. 14053/06)
DECISION & ORDER
ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509); and it is further,
ORDERED that the judgment is reversed, on the law, the petition is denied, the determination is confirmed, and the proceeding is dismissed on the merits; and it is further,
ORDERED that one bill of costs is awarded to the appellants.
The petitioners sought approval from the Planning Board of the Town of Brookhaven (hereinafter the Planning Board) to subdivide a parcel of land located within a district known as the Compatible Growth Area of the Central Pine Barrens. After numerous yield-maps were submitted and several hearings held, the Planning Board denied the application on several grounds. The Supreme Court granted the petition to annul the Planning Board's determination on the ground that the findings and conclusions were unreasonable and arbitrary and capricious. We reverse.
"A local planning board has broad discretion in reaching its determination on applications [for a subdivision] such as the petitioner's, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion" (Matter of Kearney v Kita, 62 AD3d 1000, 1001). Thus, "[t]he planning board's determination should be sustained upon judicial review if it was not illegal, has a rational basis, and is not arbitrary and capricious'" (id., quoting Matter of Gallo v Rosell, 52 AD3d 514, 515). "When reviewing the determinations of a local planning board, courts consider substantial evidence only to determine whether the record contains sufficient evidence to support the rationality of the Board's determination'" (id., quoting Matter of Gallo v Rosell, 52 AD3d at 515 [internal quotation marks omitted]).
Here, the petitioners' subdivision application failed to satisfy the requirements of Town of Brookhaven Town Code § 85-448, which requires a hardship exemption from the Central Pine Barrens Commission for "proposed development located within the Compatible Growth Area of the Central Pine Barrens" (Town of Brookhaven Town Code § 85-448) where a development proposal fails to comply with certain delineated standards. These standards include a requirement that no more than 35% of the land on the site to be developed may be cleared where the proposed development is located in an A-2 residential zoning district (see Town of Brookhaven Town Code § 85-448, Fig. 5-1). Despite the petitioners' contentions to the contrary, the Town of Brookhaven Town Code clearly sets forth that the calculation of the amount of land to be cleared includes "those portions of the site that are already cleared due to previous activities" (Town of Brookhaven Town Code § 85-448[E][a]). In light of the fact that essentially the entire subject parcel had been cleared as a result of prior agricultural activities, a hardship exemption was a necessary component of the petitioner's application. Since the petitioners refused to apply to the Central Pine Barrens Commission for a hardship exemption, the Planning Board's determination that the application did not satisfy the requirements of Town of Brookhaven Town Code § 85-448 had a rational basis and was not arbitrary and capricious. Accordingly, the petition should have been denied.
In light of our determination, we need not address the Planning Board's remaining contentions.
RIVERA, J.P., MILLER, LEVENTHAL and CHAMBERS, JJ., concur.
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