Opinion
2002-06375
Argued February 7, 2003.
March 3, 2003.
In a proceeding pursuant to CPLR article 78 to review a determination of the Town Board of the Town of Oyster Bay dated June 12, 2001, which denied the petitioners' application for a special use permit, the appeal, by permission, is from an order of the Supreme Court, Suffolk County (Catterson, J.), dated July 8, 2002, which vacated the determination and remitted the matter for further proceedings.
Schapiro Reich, Lindenhurst, N.Y. (Steven M. Schapiro and Perry S. Reich of counsel), for appellants Town Board of Town of Oyster Bay and Town Environmental Quality Review Commission.
Certilman Balin Adler Hyman, LLP, East Meadow, N.Y. (M. Allan Hyman, Donna Marie Korth, and Candace Reid Gladston of counsel) and Goldstein Avrutine, Syosset, N.Y. (Howard D. Avrutine of counsel), for appellants Birchwood Civic Association at Jericho, Inc., Debbi Hunter, and Warren Church (one brief filed).
Morton Weber, Melville, N.Y. (John A. Harras and Kenneth A. Brown of counsel), for respondents.
Before: ANITA R. FLORIO, J.P., STEPHEN G. CRANE, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with one bill of costs payable by the appellants Birchwood Civic Association at Jericho, Inc., Debbi Hunter, and Warren Church.
Contrary to the appellants' contention, the Supreme Court properly determined that the denial by the Town Board of the Town of Oyster Bay (hereinafter the Town Board) of the petitioners' application for a special use permit was arbitrary and capricious. There was insufficient evidence to support a deviation from the initial SEQRA finding of the Town Environmental Quality Review Commission, which was in favor of the proposed project (see Matter of WEOK Broadcasting Corp. v. Planning Bd. of Town of Lloyd, 79 N.Y.2d 373, 384; Matter of SCI Funeral Servs. of N.Y. v. Planning Bd. of Town of Babylon, 277 A.D.2d 319, 320; Matter of Ernalex Constr. Realty Corp. v. Bellissimo, 256 A.D.2d 338, 340). Further, the Supreme Court properly determined that the Town Board abused its discretion in failing to consider the petitioners' offer of mitigation (see Matter of Merson v. McNally, 90 N.Y.2d 742, 753-754; cf. Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 429-430).
The appellants' remaining contention is unpreserved for appellate review and, in any event, is without merit.
FLORIO, J.P., CRANE, COZIER and RIVERA, JJ., concur.