Opinion
Argued April 27, 1999
June 14, 1999
In a proceeding pursuant to CPLR article 78 to review a determination of the Town of Cortlandt Planning Board, dated September 25, 1997, which, after a hearing, denied the petitioner's application for site development plan approval, the appeal is from a judgment of the Supreme Court, Westchester County (Rosato, J.), entered April 22, 1998, which granted the petition to the extent of annulling the determination and remitting the matter to the respondent Town of Cortlandt Planning Board for further proceedings.
Thomas F. Wood, Town Attorney, Buchanan, N.Y., for appellants.
Plunkett Jaffe, P.C., White Plains, N.Y. (Richard J. Lambert and Lino Sciarretta of counsel), for respondent.
GABRIEL M. KRAUSMAN, J.P., LEO F. McGINITY, SANDRA J. FEUERSTEIN, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
Contrary to the appellants' contention, the determination of the respondent Town of Cortlandt Planning Board (hereinafter Planning Board) denying the petitioner's application for site plan approval was arbitrary and capricious, and thus properly annulled. While it is well settled that a decision of a town planning board will not be set aside lightly, it will be set aside if it is arbitrary or unlawful ( see, Bongiorno v. Planning Bd. of Inc. Vil. of Bellport, 143 A.D.2d 967; Syracuse Bros. v. Darcy, 127 A.D.2d 588; Matter of Currier v. Planning Bd. of Town of Huntington, 74 A.D.2d 872, affd 62 N.Y.2d 722; [ 52 N.Y.2d 722], Matter of Gronbach v. Simpkins, 96 A.D.2d 1100). Here, the Planning Board's stated reason for denial, i.e., failure to submit sufficient information, is not supported by relevant and adequate proof ( see, Syracuse Bros. v. Darcy, supra; Bongiorno v. Planning Bd. of Inc. Vil. of Bellport, supra). Moreover, the record reveals that the Planning Board's decision was, in part, a response to local public opposition. This is an improper ground upon which to base a denial of permission to operate an otherwise conforming business ( Bongiorno v. Planning Bd. of Inc. Vil. of Bellport, supra). In this regard we note that the property in question is commercially zoned for light industrial use, and that the proposed use by the petitioner is permitted as a matter of right ( see, Syracuse Bros. v. Darcy, supra).