Matter of Svenningsen v. Passidomo

9 Citing cases

  1. Clubside, Inc. v. Valentin

    463 F.3d 199 (2d Cir. 2006)   Cited 522 times
    Holding that the plaintiff must establish that no rational person could regard the circumstances of the plaintiff to differ from another to a degree that would justify different treatment on the basis of a legitimate government policy, and the similarity in circumstances and difference in treatment are sufficient to conclude that the defendants did not so act by mistake

    Clubside responds that whatever discretion could be embraced by the term public interest has been cabined by the courts. Relying on Svenningsen v. Passidomo, 62 N.Y.2d 967, 479 N.Y.S.2d 335, 468 N.E.2d 290 (1984), and Harper v. Zoning Board of Appeals of Town of Lima, 43 N.Y.2d 980, 404 N.Y.S.2d 597, 375 N.E.2d 777 (1978), aff'g Town of Lima v. Harper, 55 A.D.2d 405, 390 N.Y.S.2d 752 (4th Dep't 1977), it contends that New York courts have interpreted the term public interest narrowly to mean whether there is adequate capacity in the system for the additional sewage, the physical ability to make the connection, and a lack of public health concerns. Clubside maintains that because these specific, objectively ascertainable criteria were met in this situation, the Board had no discretion to deny its application.

  2. S v. Town Bd. of Town of Mendon (In re Riedman Acquisitions, LLC)

    194 A.D.3d 1444 (N.Y. App. Div. 2021)   Cited 1 times

    Here, it was not arbitrary and capricious for the Town Board to decline to approve the 2018 Sewer Agreement because, in light of its general power to execute and award contracts on behalf of the Town, the Town Board could decide that it did not want to purchase sewer services from a neighboring town (see generally Matter ofCaiola v. Town of Ossining , 272 A.D.2d 324, 324-325, 707 N.Y.S.2d 200 [2d Dept. 2000], lv denied 95 N.Y.2d 761, 714 N.Y.S.2d 711, 737 N.E.2d 953 [2000] ; Fraccola v. City of Utica Bd. of Water Supply , 70 A.D.2d 768, 769, 417 N.Y.S.2d 357 [4th Dept. 1979] ). The cases relied on by petitioners are inapposite because they involved applications requesting that a municipality establish or extend a sewer district under Town Law § 190 —not the determination whether to execute a contract with another municipality under Town Law § 64 (6) (cf. Matter ofSvenningsen v. Passidomo , 62 N.Y.2d 967, 969, 479 N.Y.S.2d 335, 468 N.E.2d 290 [1984] ; Town of Lima v. Harper , 55 A.D.2d 405, 411, 390 N.Y.S.2d 752 [4th Dept. 1977], affd 43 N.Y.2d 980, 404 N.Y.S.2d 597, 375 N.E.2d 777 [1978] ; Matter of Clubside, Inc. v. Town Bd., Town of Wallkill , 297 A.D.2d 734, 735, 747 N.Y.S.2d 546 [2d Dept. 2002] ). Indeed, we note that "[o]rdinarily, the failure of a legislative body to exercise its powers is not subject to review in the courts" ( Harper , 55 A.D.2d at 411, 390 N.Y.S.2d 752 [emphasis added]).

  3. Hunter v. Hunter

    35 A.D.3d 1072 (N.Y. App. Div. 2006)   Cited 2 times

    nd the governmental act to be compelled is a mandatory duty commanded to be performed by law in a specified manner involving no exercise of judgment or discretion ( see Matter of Brusco v Braun, 84 NY2d 674, 679; see also Matter of Hamptons Hosp. Med. Ctr. v Moore, 52 NY2d 88, 96; Matter of Davis v Pomeroy, 283 AD2d 874, 875). While denial of an application to access water and sewer service will be reversed if it is arbitrary and unsupported by substantial evidence ( see e.g. Matter of Capitol Real Estate, Inc. v Town Bd. of Town of Charlton, 23 AD3d 858, 860; Matter of Clubside, Inc. v Town Bd., Town of Wallkill, 297 AD2d 734, 735; Matter of Peschel v Village of Monroe, 226 AD2d 540, 541, lv denied 89 NY2d 803), a municipality nonetheless has the discretion to reject such an application "upon a finding that the proposed connection, because of excessive demands on the system or otherwise, would present problems related to the sewer system or the public health of the [municipality]" ( Matter of Suenningsen v Passidomo, 62 NY2d 967, 969). Thus, petitioner may seek review of respondent's determination, but mandamus is not an available remedy.

  4. In re Capitol Real Estate

    23 A.D.3d 858 (N.Y. App. Div. 2005)   Cited 3 times
    In Capitol Real Estate, an Article 78 action concerning the denial of a petition for an extension of a water district, the Appellate Division "reject[ed the] petitioner's argument that [the town board's] review of the potential impact of the proposed extension should be limited only to the water district itself and its functions."

    A town board may not exercise appellate jurisdiction over site development plans which have been reviewed and approved by a planning board with proper authority ( see Matter of Boxer v. Town Bd. of Town of Cortlandt, 60 AD2d 913, 913; Matter of Spinosa v. Ackerman, 98 Misc 2d 1073, 1079, affd 72 AD2d 976). Moreover, these factors are wholly unrelated to the requested extension of the water district and do not support denial of that application ( see Matter of Svenningsen v. Passidomo, 62 NY2d 967, 969; Matter of Clubside, Inc. v. Town Bd., Town of Wallkill, 297 AD2d 734, 735). Ordered that the judgment is affirmed, without costs.

  5. Northway 11 Communities v. Town Bd., Malta

    300 A.D.2d 786 (N.Y. App. Div. 2002)   Cited 16 times

    fected by an error of law sufficient to defeat the motion to dismiss (see Matter of Nowlin v. Schriver, 269 A.D.2d 630). Here, although respondent did not formally state the grounds for its refusal to consider petitioner's application, there is no real dispute that respondent's action was motivated by its concern, wholly unsubstantiated in this record, that permitting Northway to utilize the easement to connect to the public sewer system would cause financial hardship to other customers of C.K. Sanitary. According to petitioner, this concern is speculative and fails to address a legitimate concern such as, for example, the overburdening of the right-of-way or the "interest of public welfare and safety" (Matter of Syosset Indus. Bldrs. v. Town of Oyster Bay Highway Dept., 24 A.D.2d 763, 763; see Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N.Y.2d 508, 526) and, therefore, could be found to be arbitrary, capricious and affected by an error of law (see generally Matter of Svenningsen v. Passidomo, 62 N.Y.2d 967, 969; Matter of Clubside, Inc. v. Town Bd., Town of Wallkill, 297 A.D.2d 734). Giving petitioner the benefit of every favorable inference and considering the absence of a full development of the facts on this motion to dismiss, we conclude that petitioner sufficiently stated a cause of action upon which relief could be granted.

  6. Miller v. Kozakiewicz

    300 A.D.2d 399 (N.Y. App. Div. 2002)   Cited 16 times

    Here, the petitioners failed to raise the specific challenges advanced on this appeal during the extensive administrative review of the proposed shopping center. In any event, the Town Board had the authority to enter a contract to provide sewer service to a small portion of the site that was located outside the sewer district (see Matter of Svenningsenv. Passidomo, 62 N.Y.2d 967; Matter of Caiola v. Town of Ossining, 272 A.D.2d 324). Moreover, the petitioners' conclusory allegations regarding the sewer service were not sufficient to warrant an annulment of the Town Board's decision to grant the special permits and approve the site plan. Accordingly, the Supreme Court properly dismissed the present proceeding on the ground that the Town Board's determination was rational and supported by substantial evidence.

  7. Clubside, Inc. v. Town Board of Wallkill

    297 A.D.2d 734 (N.Y. App. Div. 2002)   Cited 2 times

    Although the Town Board did not state the grounds for its determination, it was evident, based on the detailed affidavit of the Town Supervisor submitted in opposition to the petition, that the grounds for the denial were the unsubstantiated fears of the individual members of the Town Board that the condominium development posed public health problems and that the addition of school-age children would burden the local school system. We agree with the Supreme Court's conclusion that the determination of the Town Board was arbitrary and capricious (see Kraizberg v. Shankey, 167 A.D.2d 370; see also Matter of Svenningsen v. Passidomo, 62 N.Y.2d 967; Town of Lima v. Harper, 55 A.D.2d 405, 411, affd 43 N.Y.2d 980). The remaining contentions of the Town Board are without merit.

  8. Matter of Caiola v. Town of Ossining

    272 A.D.2d 324 (N.Y. App. Div. 2000)   Cited 3 times

    The Town, in its proprietary role, may contract to provide sewer services to property outside of its limits at its own discretion (see, Fraccola v. City of Utica Bd. of Water Supply, 70 A.D.2d 768). As a nonresident of the Town, the petitioner is not entitled to its sewer services, and he can rely only on the Town's discretion for access to its sewer system (see, Heritage Co. of Massena v. Village of Massena, 192 A.D.2d 1039; cf., Kraizberg v. Shankey, 167 A.D.2d 370). Furthermore, there is no foundation for the petitioner's contention that he relied detrimentally on the alleged lack of objections from the Town in the six years that passed between the Town of Cortlandt's conditional approval of his subdivision and the vote of the Ossining Town Board to deny him access to the sewer system. Matter of Svenningsen v. Passidomo ( 62 N.Y.2d 967), relied on by the petitioner, is distinguishable because the property therein, unlike the instant property, was partly within the town that denied access to its sewer system. The petitioner's remaining contentions are without merit.

  9. Incorporated Vlg. v. John Anthony's Wtr. Cafe

    137 A.D.2d 791 (N.Y. App. Div. 1988)   Cited 9 times

    Section 248-260 of the Code of the Village of Babylon provides that "the Building Inspector shall revoke any Certificate of Occupancy issued for any premises upon his inspection and his finding that said premises or the use thereof fail to comply in all respects with the provisions of the chapter of that said premises, in his determination and his judgment, are maintained in a condition dangerous, unsafe and hazardous to life, limb and health". A town has the right pursuant to its police powers, to prevent conditions dangerous to public health (Matter of Svenningsen v Passidomo, 95 A.D.2d 833, affd 62 N.Y.2d 967). "[I]t is not for [the] court to determine finally the merits of an action upon a motion for preliminary injunction; rather, the purpose of the interlocutory relief is to preserve the status quo until a decision is reached on the merits *