Opinion
October 23, 1967
Judgment of the Supreme Court, Westchester County, dated April 26, 1967, reversed, on the law, without costs; and petition granted to the extent that the respondent Town Board's determination, made on January 13, 1967, is annulled and the matter is remanded to the Town Board for the purpose of holding a public hearing and making a new determination on petitioners' application for a special off-street parking permit pursuant to section 441 of the Zoning Ordinance of the Town of North Castle. No questions of fact were considered on this appeal. Petitioners Lionel J. and Helen D. Alexander own a vacant parcel of land in the Town of North Castle. The land fronts on three public streets, one of which is North Broadway or Route 22. In order to construct an office building on this site, the owners-petitioners needed this off-street parking permit relating to part of their parcel, namely, a long narrow portion which is located in an R 5 residential zone fronting on Palmer Avenue. The Town Board, after a public hearing, granted the permit on three conditions. The first of these restricted the entrance to the business use to Route 22 only. The site plan which had been approved by the Planning Board of the Town of North Castle and which was submitted to the Town Board was the only plan at issue at the hearing. That plan provided for access to the parking facility via Castle Heights Place, which is the north boundary of the parcel. No discussion was had and no proofs were offered as to the desirability or safety of utilizing Route 22 as the only means of access. Subsequent to the Town Board's determination, the New York State Department of Public Works advised petitioners of its specifications as to grade, etc., dealing with access to a State-maintained highway. Petitioners determined that topographical and financial considerations barred the construction of their building under the Town Board's imposed conditions. They asked informally for a rehearing; and this was informally denied by the board. Without passing on the merits of the Town Board's determination, it is our view that a fair and just resolution of this controversy can only be had upon a rehearing. At that time petitioners will have the opportunity to demonstrate to the board the alleged unreasonableness of the town's imposed condition relating to access only from Route 22. Engineering, construction, financial and safety factors can be presented and weighed. When petitioners worked out the access aspect of their site plan with the Planning Board, consideration was given to Route 22 and the idea was rejected. Thus, petitioners had no reason to anticipate that when the Town Board considered the submitted plan after the hearing it would adopt this surprise limitation of access only from Route 22. Additionally, the other two conditions, relating to petitioners' grant of a 10-foot easement to the Town and the creation of a 15-foot buffer zone, would be better decided in the context of whatever new facts will be developed at the rehearing. There is a dispute between the parties concerning the circumstances surrounding the grant of the easement and the resolution of that conflict bears directly on the third condition relating to the extent of the buffer zone. The direction to conduct a rehearing is fair and a rehearing will be helpful in crystallizing and resolving the over-all controversy. Beldock, P.J., Christ, Brennan, Hopkins and Munder, JJ., concur.