Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Fildon, LLC

Supreme Court of New York, Second Department

August 1, 2018

In the Matter of Fildon, LLC, et al., appellants,
v.
Planning Board of the Incorporated Village of Hempstead, et al., respondents. Index No. 1121/16

          Argued - April 27, 2018

         D56233 G/htr

          White, Cirrito & Nally, LLP, Hempstead, NY (Christopher M. Lynch of counsel), for appellants.

          Debra Urbano-DiSalvo, Village Attorney, Hempstead, NY (Keisha N. Marshall of counsel), for respondents.

          WILLIAM F. MASTRO, J.P. MARK C. DILLON FRANCESCA E. CONNOLLY ANGELA G. IANNACCI, JJ.

          DECISION & JUDGMENT

         Proceeding pursuant to CPLR article 78 to review a determination of the Planning Board of the Incorporated Village of Hempstead. The determination denied an application for site plan approval.

         ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

         The petitioners own two contiguous parcels of property in the industrial zone in the Incorporated Village of Hempstead, which they currently use for storage of construction material and equipment. The petitioners submitted an application to the Village's Planning Board (hereinafter the Planning Board) for site plan approval of a "green waste and construction debris transfer station.'' After a public hearing, the Planning Board denied the petitioners' application due to concerns about traffic and congestion. The petitioners commenced this proceeding pursuant to CPLR article 78 to review the determination. The Supreme Court transferred this proceeding to this Court pursuant to CPLR 7804(g).

         Initially, the Supreme Court should not have transferred this proceeding to this Court pursuant to CPLR 7804(g) because the determination to be reviewed was "not made after a trial-type hearing held pursuant to direction of law at which evidence was taken" (Matter of M&V 99 Franklin Realty Corp. v Weiss, 124 A.D.3d 783, 784; see CPLR 7803[4]; Village Law § 7-725-a[11]; Matter of Navaretta v Town of Oyster Bay, 72 A.D.3d 823, 824; Matter of Halperin v City of New Rochelle, 24 A.D.3d 768, 769). Municipal land use agencies are ''quasi-legislative, quasi-administrative bodies, '' and "the public hearings they conduct are informational in nature and [do] not involve the receipt of sworn testimony or taking of evidence within the meaning of CPLR 7803(4)" (Matter of Halperin v City of New Rochelle, 24 A.D.3d at 770 [internal quotation marks and citations omitted]). "Accordingly, determinations of such agencies are reviewed under the 'arbitrary and capricious' standard of CPLR 7803(3), and not the 'substantial evidence' standard of CPLR 7803(4)" (id.; see Matter of M&V 99 Franklin Realty Corp. v Weiss, 124 A.D.3d at 784). In the interest of judicial economy, this Court will nevertheless decide the petition on the merits, as the full administrative record is before this Court (see Matter of M&V99 Franklin Realty Corp. v Weiss, 124 A.D.3d at 784; Matter of Halperin v City of New Rochelle, 24 A.D.3d at 772-773).

         "'A local planning board has broad discretion in reaching its determination on applications . . . and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion'" (Matter of In-Towne Shopping Ctrs., Co. v Planning Bd. of the Town of Brookhaven, 73 A.D.3d 925, 926, quoting Matter of Kearney v Kita, 62 A.D.3d 1000, 1001; see Matter of Ostojic v Gee, 130 A.D.3d 927, 928; Matter of Kaywood Props., Ltd. v Forte, 69 A.D.3d 628; Matter of Davies Farm, LLC v Planning Bd. of Town of Clarkstown, 54 A.D.3d 757). "'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 [b]oard's determination'" (Matter of In-Towne Shopping Ctrs., Co. v Planning Bd. of the Town of Brookhaven, 73 A.D.3d at 926, quoting Matter of Kearney v Kita, 62 A.D.3d at 1001 [internal quotation marks omitted]).

         Contrary to the petitioners' contentions, the Planning Board's determination had a rational basis, was not illegal, and was not arbitrary and capricious (see Matter of Ostojic v Gee, 130 A.D.3d at 929; Matter of Fairway Manor, Inc. v Bertinelli, 81 A.D.3d 821, 823).

         The petitioners' remaining contentions are without merit.

          MASTRO, J.P., DILLON, CONNOLLY and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.