We affirm, albeit on grounds different than those relied upon by the Supreme Court (see generally Matter of Munroe v. Ponte, 148 A.D.3d 1025, 1026, 50 N.Y.S.3d 423 ). We note that the Supreme Court improperly relied, in part, on a ground not invoked by the Board (see Matter of Scherbyn v. Wayne–Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 758, 570 N.Y.S.2d 474, 573 N.E.2d 562 ; Matter of Ignaczak v. Ryan, 79 A.D.3d 881, 882, 912 N.Y.S.2d 658 ; Matter of Anayati v. Board of Zoning Appeals of Town of N. Hempstead, 65 A.D.3d 681, 683, 885 N.Y.S.2d 300 ).
The Commissioner and the DSS appeal, and we reverse. The standard of review applicable to the Commissioner's determination denying the petitioner's request, which was rendered without an evidentiary hearing, is whether the determination was arbitrary and capricious, irrational, or affected by an error of law (see CPLR 7803[3] ; Matter of Scherbyn v. Wayne–Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 757–758, 570 N.Y.S.2d 474, 573 N.E.2d 562 ; Matter of Ignaczak v. Ryan, 79 A.D.3d 881, 882, 912 N.Y.S.2d 658 ). Here, under the particular circumstances of this case, the Supreme Court should have granted the request for an in camera review before determining whether the Commissioner's determination was arbitrary and capricious, irrational, or affected by an error of law (see generally Matter of Rella v. Board of Educ. of Greenburgh Cent. Sch. Dist., 140 A.D.3d 887, 888, 33 N.Y.S.3d 418 ; accord Social Services Law § 422[4][A][e] ).
Ordered that the judgment is affirmed, with costs. The standard of judicial review is whether the determination that the petitioner was in default of its obligations under a contract with the New York City Department of Environmental Protection (hereinafter the DEP) was arbitrary and capricious, affected by an error of law ( see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758), or lacked a rational basis ( see Matter of Ignaczak v Ryan, 79 AD3d 881, 882; Red Apple Child Dev. Ctr. v Chancellor's Bd. of Review, 307 AD2d 815, 815). The DEP's determination that the petitioner had a sufficient opportunity to be heard in connection with the issue of whether it was in default under the parties' contract, pursuant to the terms of that contract, had a rational basis ( see Matter of Sewanhaka Fedn. of Teachers v Sewanhaka Cent. High School Dist., 266 AD2d 555; Matter of Kessel v Public Serv. Commn. of State of N.Y., 193 AD2d 339; see also Matter of Kaur v New York State Urban Dev. Corp., 15 NY3d 235, 260, cert denied sub nom. Tuck-It-Away, Inc. v New York State Urban Dev. Corp., 562 US ___, 131 S Ct 822), and the determination that the petitioner was in default of its obligations under the contract was not irrational, arbitrary and capricious, or affected by an error of law.
No other grounds were stated for the denial of said appeal. "It is the settled rule that judicial review of an administrative determination is limited to the grounds invoked by the agency" ( Matter of Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs. , 77 NY2d 753, 758 [1991] ; Matter ofIgnaczak v. Ryan , 79 AD3d 881, 882 [2d Dept 2010] ; Matter of Anayati v. Bd. of Zoning Appeals of Town of N. Hempstead , 65 AD3d 681, 683 [2d Dept 2009] ). Although respondents now assert in their second, third and fourth affirmative defenses that petitioner did not timely submit the Benefit Takeover Application, that his request to takeover the SCRIE benefit is moot as his mother's benefit ended in April 2016, and that he failed to exhaust his administrative remedies with respect to June 2016 denial of his Initial Application, none of these grounds were cited by the in its January 18, 2019 determination.
d 484, 485 [1984] [‘A highway or street located within the geographical limits of a town may become a town highway or street either by dedication or use’]; Matter of Hillelsn v. Grover, 105 A.D.2d 484, 485 [1984] ; Romanoff v. Village of Scarsdale, 50 AD3d 763, 764 [2008] [internal quotation marks and citations omitted] [requires ‘a complete surrender to public use of the land by the owners, acceptance by the town, and some formal act on the part of the relevant public authorities adopting the highway, or use by the public coupled with a showing that the road was kept in repair or taken in charge by public authorities']; Perlmutter v. Four Star Dev. Assoc., 38 AD3d 1139, 1140 [2007] ; see Romanoff v. Village of Scarsdale, 50 AD3d at 764 ; Matter of Desotelle v. Town Bd. of Town of Schuyler Falls, 301 A.D.2d 1003, 1003–1004 [2003] ; Town of Lake George v. Landry, 96 AD3d 1220, 1221 [2012] ; accord Matter of Jasinski v. Hudson Pointe Homeowners Assn., 124 AD3d 978, 979 [2015] ; see also Matter of Ignaczak v. Ryan, 79 AD3d 881, 882 [2010] ). There is no evidence before the Court that Centre Place was dedicated for public use or used by the public.
v Grover, 105 AD2d 484, 485 [1984] ['A highway or street located within the geographical limits of a town may become a town highway or street either by dedication or use']; Matter of Hillelsn v Grover, 105 AD2d 484, 485 [1984]; Romanoff v Village of Scarsdale, 50 AD3d 763, 764 [2008] [internal quotation marks and citations omitted] [requires 'a complete surrender to public use of the land by the owners, acceptance by the town, and some formal act on the part of the relevant public authorities adopting the highway, or use by the public coupled with a showing that the road was kept in repair or taken in charge by public authorities']; Perlmutter v Four Star Dev. Assoc., 38 AD3d 1139, 1140 [2007]; see Romanoff v Village of Scarsdale, 50 AD3d at 764; Matter of Desotelle v Town Bd. of Town of Schuyler Falls, 301 AD2d 1003, 1003-1004 [2003]; Town of Lake George v Landry, 96 AD3d 1220, 1221 [2012]; accord Matter of Jasinski v Hudson Pointe Homeowners Assn., 124 AD3d 978, 979 [2015]; see also Matter of Ignaczak v Ryan, 79 AD3d 881, 882 [2010]). There is no evidence before the Court that Centre Place was dedicated for public use or used by the public.
A determination by an agency or official is considered administrative and within the scope of mandamus to review if it involved the exercise of discretion and no quasi-judicial hearing was required to make such a determination; rather, the petitioner "need only to be given an opportunity 'to be heard' and to submit whatever evidence he or she chooses and the agency may consider whatever evidence is at hand, whether obtained through a hearing or otherwise" (Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757-758; see Matter of Niagra Frontier Transp. Auth. v DiNapoli, 69 AD3d 1209). The standard applied by a court in a mandamus to review proceeding is whether the determination of the agency or official was arbitrary and capricious, affected by an error of law, or irrational (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753; Matter of Pile Found. Constr. Co., Inc. v New York City Dept. of Envtl. Protection, 84 AD3d 963; Matter of Ignaczak v Ryan, 79 AD3d 881). Furthermore, it is fundamental that when reviewing a determination that an agency or official alone is authorized to make, the court must judge the propriety of such determination on the grounds invoked by the agency or official in making the decision (Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758; see Matter of National Fuel Gas Distrib. Corp. v Public Serv. Commn. of the State of N.Y., 16 NY3d 360; Matter of Filiposwki v Zoning Bd. of Appeals of Vil. of Greenwood Lake, 77 AD3d 831).
A determination by an agency or official is considered administrative and within the scope of mandamus to review if it involved the exercise of discretion and no quasi-judicial hearing was required to make such a determination; rather, the petitioner "need only to be given an opportunity 'to be heard' and to submit whatever evidence he or she chooses and the agency may consider whatever evidence is at hand, whether obtained through a hearing or otherwise" (Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757-758; see Matter of Niagra Frontier Transp. Auth. v DiNapoli, 69 AD3d 1209). The standard applied by a court in a mandamus to review proceeding is whether the determination of the agency or official was arbitrary and capricious, affected by an error of law, or irrational (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753; Matter of Pile Found. Constr. Co., Inc. v New York City Dept. of Envtl. Protection, 84 AD3d 963; Matter of Ignaczak v Ryan, 79 AD3d 881). Furthermore, it is fundamental that when reviewing a determination that an agency or official alone is authorized to make, the court must judge the propriety of such determination on the grounds invoked by the agency or official in making the decision (Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758; see Matter of National Fuel Gas Distrib. Corp. v Public Serv. Commn. of the State of N.Y., 16 NY3d 360; Matter of Filiposwki v Zoning Bd. of Appeals of Vil. of Greenwood Lake, 77 AD3d 831).
"Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" (Matter of Pell v Board of Educ., 34 NY2d 222, 231, 356 NYS2d 833). Further, it is fundamental that when reviewing a determination an administrative agency alone is authorized to make, the court must judge the propriety of such determination on the grounds invoked by the agency; if the reasons relied on by the agency do not support the determination, the administrative determination must be overturned (Matter of National Fuel Gas Distrib. Corp. v Public Serv. Commn. of the State of N.Y., 16 NY3d 360, 368, 922 NYS2d 224 [2011]; Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758, 570 NYS2d 474; see Lgnaczak v Ryan, 79 AD3d 881, 912 NYS2d 658 [2d Dept 2010]; Matter of Filipowski v Zoning Bd. of Appeals of Vil. of Greenwood Lake, 77 AD3d 831, 909 NYS2d 530 [2d Dept 2010]; Matter of Stone Landing Corp. v Board of Appeals of Vil. of Amityville, 5 AD3d 496, 773 NYS2d 103 [2d Dept 2004]). Pursuant to Section 142-6 of the Code of the Village of Greenport, petitioner was required to obtain a special permit from the Village to perform construction and other regulated activities in the wetlands area of his property.
"Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" (Matter of Pell v Board of Educ, 34 NY2d 222, 231, 356 NYS2d 833). Further, it is fundamental that when reviewing a determination an administrative agency alone is authorized to make, the court must judge the propriety of such determination on the grounds invoked by the agency; if the reasons relied on by the agency do not support the determination, the administrative determination must be overturned (Matter of National Fuel Distrib. Corp. v Public Serv. Commn. of the State of N.Y., 16 NY3d 360, 368, 922 NYS2d 224 [2011]; Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758, 570 NYS2d 474; see Ignaczak v Ryan, 79 AD3d 881, 912 NYS2d 658 [2d Dept 2010]; Matter of Filipowski v Zoning Bd. of Appeals of Vil. of Greenwood Lake, 77 AD3d 831, 909 NYS2d 530 [2d Dept 2010]; Matter of Stone Landing Corp. v Board of Appeals of Vil. of Amitymile, 5 AD3d 496, 773 NYS2d 103 [2d Dept 2004]). A use of property that is inconsistent with the existing zoning scheme, but which was lawful prior to the zoning change, generally is constitutionally protected as a nonconforming use (see Buffalo Crushed Stone, Inc. v Town of Cheektowaga, 13 NY3d 88, 97, 885 NYS2d 8 [2009]; Matter of Toys "R" Us v Silva, 89 NY2d 411, 417, 654 NYS2d 100 [1996]), and will be permitted to continue if enforcement of the existing zoning ordinance "would, by rendering valueless substantial improvements or business built up over the years, cause serious financial harm to the property owner" (People v Miller, 304 NY 105, 107, 106 NE2d 34 [1952]; see Matter of Harbison v City of Buffalo, 4 NY2d 553, 176 NYS2d 598 [1958]).