Opinion
2002-06279
Argued February 24, 2003.
July 21, 2003.
In a proceeding pursuant to CPLR article 78 to review a determination of the Town Board of the Town of Riverhead, dated February 20, 2002, which, in effect, denied the petitioner's application for a special use permit, the Town Board of the Town of Riverhead appeals, by permission, from an order of the Supreme Court, Suffolk County (Emerson, J.), dated June 12, 2002, which denied its motion to dismiss the petition.
Smith, Finkelstein, Lundberg, Isler Yakaboski, LLP, Riverhead, N.Y. (Frank A. Isler of counsel), for appellant.
Bracken, Margolin Gouvis, LLP, Islandia, N.Y. (Linda U. Margolin of counsel), for respondent.
Before: SONDRA MILLER, J.P., GLORIA GOLDSTEIN, THOMAS A. ADAMS, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Contrary to the appellant's contention, the Supreme Court properly denied its motion, pursuant to CPLR 7804(f), to dismiss the petition. The Suffolk County Planning Commission's December 5, 2001, determination was merely an advisory recommendation capable of being rejected by a vote of a majority plus one of the appellant's members ( see General Municipal Law § 239-M[5]; Suffolk County Administrative Code § A14-22[E][3]; Town of Smithtown v. Howell, 31 N.Y.2d 365; H.O.M.E.S. v. New York Urban Dev. Corp., 98 Misc.2d 790, 800, mod on other grounds 69 A.D.2d 222) . Therefore, it is not subject to review pursuant to CPLR article 78 ( Matter of Baker-Firestone v. Bowman, 43 A.D.2d 738, 739; H.O.M.E.S. v. New York Urban Dev. Corp., supra). Rather, the appellant, which issued the resolution challenged by the petitioner, is the proper party to the proceeding ( see CPLR 7803; Riverhead Town Code § 108-3; 208 East 30th St. Corp. v. Town of North Salem, 88 A.D.2d 281, 285).
The appellant's remaining contention is without merit.
S. MILLER, J.P., ADAMS and RIVERA, JJ., concur.
At issue here is whether the petitioner's application for a special use permit was properly denied. The Suffolk County Planning Commission (hereinafter the Planning Commission) disapproved the petitioner's application in a written determination dated December 5, 2001. Pursuant to General Municipal Law § 239-m(5), the appellant, Town Board of the Town of Riverhead (hereinafter the Town Board), "shall not act contrary to such recommendation except by a vote of a majority plus one of all the members thereof." Similarly, Suffolk County Administrative Code § A14-22(E)(3) requires the "affirmative vote of a majority plus one" to override the disapproval of the Planning Commission. It is undisputed that the Town Board voted by a simple majority vote of three to two to grant the petitioner's application, setting forth extensive reasons why the application should be granted. Since the Town Board could only override the Planning Commission by a vote of majority plus one, the petitioner's application was denied by operation of law ( see Matter of Aloya v. Planning Bd. of Town of Stony Point, 93 N.Y.2d 334, 341).
The petitioner commenced the instant proceeding against the Town Board to review the denial of its application on the ground that it was arbitrary and capricious and not supported by substantial evidence, and was not "supported by any formal findings of fact." The Town Board moved to dismiss the proceeding on the ground that the petitioner failed to join the Planning Commission as a necessary party and on the ground that the petition failed to state a cause of action.
The Supreme Court denied the Town Board's motion, holding that the Planning Commission was not a necessary party and "the mere fact that the Planning Commission recommended against the application does not necessarily support the decision of the Town Board."
The problem with this analysis is that the Town Board never rendered a "decision" denying the petitioner's application. A simple majority of the Town Board voted to grant the application and its resolution sets forth reasons supporting the view of the simple majority.
Denial of the application is mandated by statute ( see Matter of Smithtown v. Howell, 31 N.Y.2d 365). This court has held that failure to comply with the majority-plus-one requirement in General Municipal Law § 239-m constitutes a jurisdictional defect rendering null and void a purported approval of an application (see Matter of South Shore Audubon Socy. v. Board of Zoning Appeals of Town of Hempstead, 185 A.D.2d 984, 985). A fortiori, the denial cannot be deemed arbitrary and capricious.
In its brief on appeal, the petitioner sets forth inconsistent positions. In its first point, it claims that the recommendation of the Planning Commission is not reviewable pursuant to CPLR article 78 and therefore the Planning Commission need not be joined as a party to this proceeding. In its second point, it challenges the reasons cited by the Planning Commission for its recommendation as "arbitrary."
The determination of the Planning Commission was nonfinal when issued since it could be "overridden by a vote of a majority plus one" ( H.O.M.E.S. v. New York Urban Dev. Corp., 98 Misc.2d 790, 800, mod on other grounds 69 A.D.2d 222; Matter of Smithtown v. Howell, supra at 371). If the Planning Commission's recommendation had been overridden by the requisite number of votes, its propriety would be academic (see generally 208 East 30th St. Corp. v. Town of North Salem, 88 A.D.2d 281, 285). If the Town Board had agreed with the Planning Commission's recommendation, the Town Board would have rendered a decision on the merits, subject to review to determine whether the reasoning of the Town Board was arbitrary and capricious and supported by substantial evidence ( see Matter of Beck v. Gravelding, 247 A.D.2d 831; Matter of Gardiner v. Lo Grande, 83 A.D.2d 614, affd 60 N.Y.2d 673; Matter of Mason v. Zoning Bd. of Appeals of Town of Clifton Park, 72 A.D.2d 889).
The Town Board did not adopt or reject the recommendation of the Planning Commission. Since the Planning Commission recommended disapproval and the Town Board was unable to override that recommendation, the provisions of General Municipal Law 239-m(5) and the Suffolk County Administrative Code mandated denial of the application.
When the recommendation of the Planning Commission has final and binding effect, it is subject to judicial review ( see Farwood Holding Corp. v. Town Clerk of Town of Huntington, 47 A.D.2d 765; Matter of We're Assoc. v. Bear, 35 A.D.2d 846, affd 28 N.Y.2d 981; see also Sfouggatakis v. Suffolk County Planning Comm., 48 A.D.2d 885). However, in the instant case, the petitioner does not seek to join the Planning Commission as a party.
The petitioner is free to chart its course and challenge the denial of its application for a special permit based upon alleged procedural defects or errors of law in the proceedings before the Town Board ( see Matter of Voelckers v. Guelli, 58 N.Y.2d 170; 208 East 30th St. Corp. v. Town of North Salem, supra). With respect to the proceedings before the Town Board, the petitioner contends that the Town Board had a duty to "take final action on the special permit application." However, contrary to the petitioner's contention, the Town Board satisfied its duty to act when it voted on the application ( see Matter of Aloya v. Planning Bd. of Town of Stony Point, supra).
The petitioner further contends that the Town Board erred in failing to set forth reasons for denial of the application. Since a simple majority of the Town Board was in favor of granting the application, it set forth reasons in support of that position. To attach legal significance to this fact would eviscerate the statutory requirement of a supermajority vote (see generally Modern Landfill v. Town of Lewiston, 181 A.D.2d 159, 164). Any objections to this statutory scheme must be addressed to the Legislature.
In view of the foregoing, the petitioner's contentions are without merit. Accordingly, the proceeding should have been dismissed for failure to state a cause of action.