Terra Homes, Inc. v. Town of Hempstead

Appellate Division of the Supreme Court of New York

Terra Homes, Inc. v. Town of Hempstead

136 A.D.2d 709, 523 N.Y.S.2d 906, 1988 N.Y. App. Div. LEXIS 664

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

DecidedJanuary 25, 1988

StatusPublished

Cited by1 cases

This text of 136 A.D.2d 709 (Terra Homes, Inc. v. Town of Hempstead) 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.

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Terra Homes, Inc. v. Town of Hempstead, 136 A.D.2d 709, 523 N.Y.S.2d 906, 1988 N.Y. App. Div. LEXIS 664 (N.Y. Ct. App. 1988).

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Opinion

—In a proceeding pursuant to CPLR article 78 to compel the Town of Hempstead to perform any acts required to complete the processing of the map of Ciper Homes at Levittown, New York, and to forward any necessary papers and documentation relating to said map to the Nassau County Planning Commission, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Roncallo, J.), entered March 4, 1987, which dismissed the proceeding on the merits.

Ordered that the judgment is reversed, on the law, with costs, the petition is granted, and the town is hereby directed to perform any acts required to complete the processing of the map of Ciper Homes at Levittown, New York, and to forward any necessary papers and documentation relating to said map to the Nassau County Planning Commission for final approval.

Under the circumstances of this case, we conclude that the town’s decision to withhold the release of the map of Ciper Homes at Levittown, New York, involving the petitioner’s proposed residential development, pending the outcome of litigation between the parties for area variances relating to the petitioner’s adjacent parcels of real property (see, Matter of Terra Homes v Rose, 133 AD2d 764) was arbitrary, capricious and did not constitute a valid exercise of administrative discretion. The outcome of that litigation will not materially impact upon the instant subdivision map approval since the variances for these parcels have already been granted and are no longer subject to review on appeal. The petitioner has satisfied each of the three conditions outlined by the Nassau County Planning Commission in its tentative approval of the Ciper Homes subdivision map which included the issuance of a certificate of necessity by the New York State Department of Transportation as well as the issuance of an area variance. It is also significant to note that the New York State Department of Transportation refused to revoke the certificate of necessity in response to the town’s request, and the Board of Zoning Appeals of the Town of Hempstead, to date, has not complied with the town’s request to reconsider the petitioner’s area variance. In view of the town’s failure to advance adequate reasons for its delay in processing the map for final [710]*710approval by the Nassau County Planning Commission, the petition is granted. Mollen, P. J., Thompson, Lawrence and Eiber, JJ., concur.

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—In a proceeding pursuant to CPLR article 78 to compel the Town of Hempstead to perform any acts required to complete the processing of the map of Ciper Homes at Levittown, New York, and to forward any necessary papers and documentation relating to said map to the Nassau County Planning Commission, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Roncallo, J.), entered March 4, 1987, which dismissed the proceeding on the merits.

Ordered that the judgment is reversed, on the law, with costs, the petition is granted, and the town is hereby directed to perform any acts required to complete the processing of the map of Ciper Homes at Levittown, New York, and to forward any necessary papers and documentation relating to said map to the Nassau County Planning Commission for final approval.

Under the circumstances of this case, we conclude that the town’s decision to withhold the release of the map of Ciper Homes at Levittown, New York, involving the petitioner’s proposed residential development, pending the outcome of litigation between the parties for area variances relating to the petitioner’s adjacent parcels of real property (see, Matter of Terra Homes v Rose, 133 AD2d 764) was arbitrary, capricious and did not constitute a valid exercise of administrative discretion. The outcome of that litigation will not materially impact upon the instant subdivision map approval since the variances for these parcels have already been granted and are no longer subject to review on appeal. The petitioner has satisfied each of the three conditions outlined by the Nassau County Planning Commission in its tentative approval of the Ciper Homes subdivision map which included the issuance of a certificate of necessity by the New York State Department of Transportation as well as the issuance of an area variance. It is also significant to note that the New York State Department of Transportation refused to revoke the certificate of necessity in response to the town’s request, and the Board of Zoning Appeals of the Town of Hempstead, to date, has not complied with the town’s request to reconsider the petitioner’s area variance. In view of the town’s failure to advance adequate reasons for its delay in processing the map for final [710]*710approval by the Nassau County Planning Commission, the petition is granted. Mollen, P. J., Thompson, Lawrence and Eiber, JJ., concur.

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136 A.D.2d 709, 523 N.Y.S.2d 906, 1988 N.Y. App. Div. LEXIS 664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terra-homes-inc-v-town-of-hempstead-nyappdiv-1988.

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