Opinion
Decided June 30, 2009.
APPEAL from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered February 6, 2009. The Appellate Division, with two Justices dissenting, affirmed a judgment (denominated order and judgment) of the Supreme Court, Monroe County (Ann Marie Taddeo, J.), entered in a proceeding pursuant to CPLR article 78, which had granted a motion by respondent Town of Chili Planning Board to dismiss the petition.
Respondent, a metals reprocessing business, sought approval from the town planning board to install an automobile metal shredder at its scrap metal processing facility. The planning board conducted a State Environmental Quality Review Act type I review and rendered determinations issuing a conditional use permit and a negative declaration. Petitioners sought to annul the determinations.
The Appellate Division majority concluded that the petition was properly dismissed. The dissent concluded that neither the Town's fire marshal nor the county planning department addressed the risk of explosions and the risk of flying projectiles from the shredder with respect to airplanes using runways near the proposed shredder; that those concerns should have been addressed explicitly; and that it was not enough that the planning board considered the views of the fire marshal and the department, inasmuch as it appeared that neither had considered the risk to airplanes using nearby runways.
Matter of Anderson v Town of Chili Planning Bd., 59 AD3d 1017, reversed.
Hancock Estabrook, LLP, Syracuse ( Janet D. Callahan of counsel), for appellants.
Keith E. O'Toole, Spencerport, for Town of Chili Planning Board, respondent.
Ward Norris Heller Reidy LLP, Rochester ( Jeffrey J. Harridine of counsel), for Metalico Rochester, Inc., respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, with costs, respondent Planning Board's determinations issuing a conditional use permit and a negative declaration annulled and matter remitted to Supreme Court, Monroe County, with directions to remand to the Planning Board for further proceedings for the reasons stated in the dissenting memorandum at the Appellate Division ( 59 AD3d 1017, 1019-1020).