Jenasaqua Realty Holding Co. v. Luchsinger

Appellate Division of the Supreme Court of New York

Jenasaqua Realty Holding Co. v. Luchsinger

48 A.D.2d 852, 368 N.Y.S.2d 569, 1975 N.Y. App. Div. LEXIS 10074

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 9, 1975

StatusPublished

This text of 48 A.D.2d 852 (Jenasaqua Realty Holding Co. v. Luchsinger) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jenasaqua Realty Holding Co. v. Luchsinger, 48 A.D.2d 852, 368 N.Y.S.2d 569, 1975 N.Y. App. Div. LEXIS 10074 (N.Y. Ct. App. 1975).

Pincite

Opinion

In a proceeding pursuant to CPLR article 78 (1) to annul a determination of respondent planning board disapproving petitioner’s site plan, (2) to compel approval of the site plan and (3) to recover damages, petitioner appeals from a judgment of the Supreme Court, Suffolk County, dated August 30, 1974, which dismissed the petition. Judgment reversed, on the law, without costs, and petition granted to the extent of annulling the planning board’s determination and directing the planning board to approve the site plan. Petitioner’s property is concededly in a J Business 2 district, and, under section 85-109 of the Zoning Ordinance of the-Town of Brookhaven, the maximum front yard that can be required is 35 feet. There is no authority for the planning board to require petitioner’s site plan to have a setback of 230 feet. Accordingly, the planning board’s rejection of petitioner’s site plan for failure to provide a 230-foot setback should be annulled and, that being the only stated reason for rejection, the site plan should be approved. Section 85-112 of the Zoning Ordinance merely requires site plan applications to be referred to the town [853]*853engineer and that he determine whether the requirements of the ordinance and all other municipal rules and regulations have been complied with. That section does not vest the planning board with the power to require a 230-foot setback as the board contends. Gulotta, P. J., Martuscello, Christ, Brennan and Shapiro, JJ., concur.

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In a proceeding pursuant to CPLR article 78 (1) to annul a determination of respondent planning board disapproving petitioner’s site plan, (2) to compel approval of the site plan and (3) to recover damages, petitioner appeals from a judgment of the Supreme Court, Suffolk County, dated August 30, 1974, which dismissed the petition. Judgment reversed, on the law, without costs, and petition granted to the extent of annulling the planning board’s determination and directing the planning board to approve the site plan. Petitioner’s property is concededly in a J Business 2 district, and, under section 85-109 of the Zoning Ordinance of the-Town of Brookhaven, the maximum front yard that can be required is 35 feet. There is no authority for the planning board to require petitioner’s site plan to have a setback of 230 feet. Accordingly, the planning board’s rejection of petitioner’s site plan for failure to provide a 230-foot setback should be annulled and, that being the only stated reason for rejection, the site plan should be approved. Section 85-112 of the Zoning Ordinance merely requires site plan applications to be referred to the town [853]*853engineer and that he determine whether the requirements of the ordinance and all other municipal rules and regulations have been complied with. That section does not vest the planning board with the power to require a 230-foot setback as the board contends. Gulotta, P. J., Martuscello, Christ, Brennan and Shapiro, JJ., concur.

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Bluebook (online)

48 A.D.2d 852, 368 N.Y.S.2d 569, 1975 N.Y. App. Div. LEXIS 10074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jenasaqua-realty-holding-co-v-luchsinger-nyappdiv-1975.