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In the Matter of Thad L. Kempisty and Michael Kempisty, Petitioners-Appellants v. Town of Geddes

March 16, 2012

IN THE MATTER OF THAD L. KEMPISTY AND MICHAEL KEMPISTY, PETITIONERS-APPELLANTS,
v.
TOWN OF GEDDES, EMANUELE FALCONE, SUPERVISOR, CHRISTOPHER RYAN, JERRY ALBRIGO,
DANIEL PATALINO, E. ROBERT CZAPLICKI, PAUL VALENTI AND VINCENT PALERINO, CONSTITUTING THE TOWN BOARD OF TOWN OF GEDDES, TOWN OF GEDDES PLANNING BOARD, AND PETER J.
ALBRIGO, AS CODE ENFORCEMENT OFFICER OF TOWN OF GEDDES, RESPONDENTS-RESPONDENTS.



Appeal from a judgment (denominated order) of the Supreme Court, Onondaga County (James P. Murphy, J.), entered October 14, 2010 in a proceeding pursuant to CPLR article 78.

Matter of Matter of Kempisty v Town of Geddes

Decided on March 16, 2012

Appellate Division, Fourth Department

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.

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.

The judgment, insofar as appealed from, denied the petition in part.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by granting those parts of the petition seeking to annul the determination insofar as it imposed conditions three through eight upon approval of the amended site plan and as modified the judgment is affirmed without costs.

Memorandum:

Petitioners commenced this CPLR article 78 proceeding seeking, inter alia, to annul the determination of the individual respondents constituting the Town Board of Town of Geddes (Town Board) approving their amended site plan with certain conditions. Supreme Court denied the petition except insofar as it sought to annul conditions 1 (c) and 1 (d) of the Town Board resolution approving the amended site plan. Petitioners appeal from the judgment insofar as it denied the remaining relief requested in the petition. We agree with petitioners that conditions three through eight of the resolution are arbitrary and capricious, and we therefore modify the judgment by granting those parts of the petition seeking to annul the determination insofar as it imposed those conditions upon approval of the amended site plan.

Petitioner Thad L. Kempisty is the owner of two contiguous parcels of property (hereafter, properties) in the Town of Geddes (Town), and petitioner Michael Kempisty is the lessee of the properties. The first parcel, a .50-acre lot located at 1187 State Fair Boulevard and identified as Onondaga County Tax Map No. 019-01-11.1 (hereafter, developed property), contains various family businesses, including, inter alia, a motor vehicle dealership and an automotive repair business. The second parcel, a 1.13-acre lot identified as Onondaga County Tax Map No. 019-01-12.2, is vacant (hereafter, undeveloped property). Thad Kempisty purchased the undeveloped property in order "to expand the family business . . . ." Specifically, petitioners sought to establish "a vehicle and equipment sales and repair facility" on the undeveloped property.

Both properties are zoned as "Commercial C: Heavy Commercial District" pursuant to section 240-17 of the Zoning Ordinance of the Town Code. The Town Code provides that, "after site plan review," permitted uses in Heavy Commercial Districts include, inter alia, motor vehicle sales and motor vehicle service and repair, as well as accessory buildings and structures for those uses (§ 240-17 [A]). Because the developed property was used for motor vehicle sales, service and repair prior to the adoption of the current Town Code, that property did not undergo site plan review.

Thad Kempisty submitted a site plan review application seeking approval for a "[p]roposed motor vehicle sales lot [with] office and accessory vehicle inventory area" to be located on the undeveloped property. In a letter of intent to the Town, Thad Kempisty explained that he was "looking to expand and reconfigure [his] vehicle sales and service operations located [on the developed property]" and that the purchase of the undeveloped property would "allow [him] to better organize and give [his] operation a better scope for the future, aesthetically and financially." The Town Board referred the site plan application to petitioner Town of Geddes Planning Board (Planning Board) for review and recommendation.

While the application was under review, the Town concluded that the site plan review process should include the developed property as well as the undeveloped property. Petitioners therefore submitted an amended site plan review application. The amended application listed both the developed and undeveloped properties, but it stated that the developed property was "included [i]n [p]rotest [inasmuch] as it is a legal non-conforming use." Petitioners described the project as a proposed motor vehicle sales and repair facility with accessory vehicle inventory area on the ...


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