Opinion
2002-07112
Argued May 2, 2003.
May 19, 2003.
In a proceeding pursuant to CPLR article 78 to review a determination of the Town Board of the Town of Riverhead, dated December 18, 2001, which denied the petitioners' application for a special use permit, the petitoners appeal from a judgment of the Supreme Court, Suffolk County (Berler, J.), entered June 28, 2002, which denied the petition and dismissed the proceeding.
Scheyer Jellenik, Nesconset, N.Y. (Richard I. Scheyer of counsel), for appellants.
Smith, Finkelstein, Lundberg, Isler Yakaboski, LLP, Riverhead, N.Y. (Frank A. Isler and Philip Siegel of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, ROBERT W. SCHMIDT, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
We agree with the Supreme Court that there was substantial evidence in the record to support the determination of the respondent Town Board of the Town of Riverhead (hereinafter the Town Board) to deny the petitioners' application for a special use permit to build two restaurants located between two outlet malls, Tanger I and Tanger II. The application failed to comply with all the conditions necessary under Riverhead Town Code §§ 108-3(E)(3) and (4) (see Matter of Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 98 N.Y.2d 190, 195-196; Matter of North Shore Steak House v. Board of Appeals of Inc. Vil. of Thomaston, 30 N.Y.2d 238, 243; Matter of C.B.H. Props. v. Rose, 205 A.D.2d 686, 687). The record indicates that the majority of the members of the Town Board voted against adopting a resolution that would have conditionally approved the special use permit subject to certain changes because they were concerned about the safety of pedestrians going from the Tanger outlets to the restaurants along areas with a high volume of vehicular traffic. Safety is a concern specifically addressed in the Riverhead Town Code §§ 108-3(E)(3)(c) and 108-3(E)(4)(d). Failure to comply with any condition upon a special exception is sufficient grounds for denial of the exception (see Matter of Retail Prop. Trust v. Zoning Appeals of Town of Hempstead, supra). Although it is impermissible to deny a special use permit based solely on generalized objections or community pressure (see Matter of Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000; Matter of C.B.H. Props. v. Rose, supra; Bongiorno v. Planning Bd. of Inc. Vil. of Bellport, 143 A.D.2d 967), where there are other grounds in the record to support a denial, deference must be given to the discretion and common sense judgment of the board (see Matter of Retail Prop. Trust v. Zoning Appeals of Town of Hempstead, supra; Matter of Market Sq. Props. v. Town of Guilderland Zoning Bd. of Appeals, 66 N.Y.2d 893, 895). Here, the Town Board's determination was based on evidence submitted by the petitioners' experts, a report pursuant to the State Environmental Quality Review Act (ECL article 8), and knowledge of the Town Board and community members about the traffic flow in the vicinity. The petitioners were given an opportunity to address the concerns about pedestrian safety raised at a public hearing and by the Planning Board of the Town of Riverhead, and chose not to, stating that the details for pedestrian crossings would be developed at a later time. This response did not satisfy the Town Board's concerns, and it cannot be said that the Town Board's denial was unsupported by evidence in the record.
SANTUCCI, J.P., KRAUSMAN, SCHMIDT and TOWNES, JJ., concur.