Hudson Canyon Construction, Inc. v. Town of Cortlandt

289 A.D.2d 576, 735 N.Y.S.2d 807, 2001 N.Y. App. Div. LEXIS 13105

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 2001
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Town of Cortlandt Planning Board which conditionally approved the petitioner’s application for site development plan approval, the Town of Cortlandt and the Town of Cortlandt Planning Board appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Lange, J.), entered October 19, 2000, as granted those branches of the petition which were to annul conditions 2 through 15 and remitted the matter to the Town of Cortlandt Planning Board for further proceedings.

Ordered that on the Court’s own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,

Ordered that the order is affirmed, without costs or disbursements.

While it is well settled that a decision of a town planning board will not be set aside lightly (see, Bongiorno v Planning Bd., 143 AD2d 967, 968), “[t]he court will * * * substitute its judgment for that of the planning board when the board has abused its discretion or has acted arbitrarily or illegally” (Matter of Currier v Planning Bd., 74 AD2d 872, affd 52 NY2d 722). The record is devoid of any documentary evidence to support the Board’s determination to impose conditions 2 through 15 upon approval of the site plan. Therefore, contrary to the contention of the appellants, Town of Cortlandt and the Town of Cortlandt Planning Board, these conditions were arbitrary and capricious and, thus, were properly annulled (see, Syracuse Bros. v Darcy, 127 AD2d 588, 589).

The appellants’ remaining contentions are without merit. Krausman, J. P., Friedmann, Feuerstein and Schmidt, JJ., concur.