Gold Mark 35 Associates v. Town of Somers

263 A.D.2d 483, 692 N.Y.S.2d 712, 1999 N.Y. App. Div. LEXIS 7864

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1999
• Status: Published

Opinions

—In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Planning Board of the Town of Somers, dated April 9, 1997, which, after a hearing, denied the petitioner’s application for a special exception use permit and an action, inter alia, to recover damages under 42 USC § 1983, the appeal, as limited by the petitioner’s brief, is from so much of a judgment of the Supreme Court, Westchester County (Smith, J.), dated September 5, 1997, as, upon a determination that the denial of the petitioner’s application for a special exception use permit was proper, dismissed the proceeding.

Ordered that the judgment is reversed insofar as appealed from, on the law, without costs or disbursements and the petition is granted to the extent that the matter is remitted to the respondents for a new hearing and new determination on the petitioner’s application for a special exception use permit, after the Planning Board of the Town of Somers sets forth appropriate criteria with respect to the issue of “special community need”.

The petitioner, Gold Mark 35 Associates (hereinafter Gold Mark), applied to the respondent Planning Board of the Town of Somers (hereinafter the Planning Board), for a “special exception use permit” to construct a supermarket of 40,000 square feet. In the zone where the petitioner intended to build, the local zoning ordinance of the Town of Somers limited any building to a maximum of 10,000 square feet except by “special exception use permit” which required a showing of a “special community need” (Somers Town Code § 170-20.3.E). The Planning Board denied the petitioner’s application on the ground that it did not establish the existence of a special community need. The petitioner then commenced the instant proceeding, inter alia, pursuant to CPLR article 78, which was dismissed, based in part upon the conclusion of the Supreme Court that there had been no showing of special community need.

A special exception use permit may be denied where there are reasonable grounds which are supported by “substantial evidence” (Matter of Carrol’s Dev. Corp. v Gibson, 53 NY2d 813; see, Matter of Orange & Rockland Utils. v Town Bd., 214 AD2d 573). Here, however, the record fails to reveal what, if any, criteria were utilized by the Planning Board to conclude that the petitioner had not demonstrated a “special community need” in support of its application. Nor is this phrase defined by the Town Code of the Town of Somers. Consequently, it cannot be determined if the denial of the petitioner’s application for a special exception use permit was supported by substantial evidence. Accordingly, the matter must be remitted to the Supreme Court for a new hearing and determination after the Planning Board sets forth the appropriate criteria as to what constitutes a special community need. Santucci, Altman and McGinity, JJ., concur.