Opinion
No. 55 SSM 51.
Decided January 12, 2010.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered April 21, 2009. The Appellate Division (1) reversed, on the law and the facts, a judgment of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered in a proceeding pursuant to CPLR article 78, which had denied a petition to review a determination of the Town of Oyster Bay Zoning Board of Appeals denying petitioner's application for a special use permit, (2) granted the petition, (3) annulled the determination, and (4) remitted the matter to the Town of Oyster Bay Town Board to issue an appropriate building permit to the petitioner.
Petitioner's predecessor in interest applied for and was granted a special use permit to construct a new gas station and convenience store on its property. The prior owner never commenced construction. After petitioner acquired the property and began constructing a convenience store, the municipality issued a stop work order and subsequently denied petitioner's application for a special use permit on the ground that it would constitute an impermissible intensification of the property.
Matter of Emrey Props., Inc. v Baranello, 61 AD3d 866, reversed.
Sinnreich Kosakoff Messina, LLP, Central Islip ( Vincent J. Messina, Jr., and Timothy F. Hill of counsel), for appellants.
Forchelli, Curio, Deegan, Schwartz, Mineo, Cohn Terrana, LLP, Uniondale ( Andrea Tsoukalas of counsel), for 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, and matter remitted to the Appellate Division, Second Department, for consideration of issues raised but not considered on the appeal to that court. The Zoning Board's determination, upholding the Planning Board's denial of a building permit for petitioner to intensify an existing nonconforming use, was not arbitrary, capricious, or contrary to the Town Code ( see generally Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 612-613).