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The Appellate Division reversed a determination of the Supreme Court that had upheld the granting of a special permit and site plan, where the proposal failed to fully comply with the zoning ordinance. In the Matter of Marcus v. The Planning Board of the Village of Wesley Hills, the appellate division found that the lower court had erred in allowing the Planning Board to vary certain requirements for both the special permit and site plan.

The Respondent, Rockland Tree Expert, Inc., which does business in the Village as Ira Wickes, Arborist (hereinafter “Wickes”) had made an application, pursuant to the Village of Wesley Hills zoning ordinance, for a special permit to operate its nursery, landscaping and arborist business and for a site plan approval for the operation of the business within a primarily residential (R-35) zoning district.  As this was a business within a residential zone, the proposal needed review and approval of both a special permit, as well as for the site plan proposed by the applicant. The determinations  of the Planning Board were challenged and the Supreme Court upheld the decisions of the Planning Board.

On appeal, the Appellate Division reversed and remanded the matter to the Planning Board.  As the Court noted, a special permit use is a use permitted by the zoning ordinance, provided the conditions and requirements for a special permit are met.

“One of the requirements of the special use permit at issue was that the arborist service, landscape services and/or wholesale nursery ‘shall have frontage on and practical access to two major roads’ (Code of the Village of Wesley Hills [hereinafter Village Code] § 230-26[N][2]). Here, the Planning Board abused its discretion by waiving this requirement and deeming ‘practical access’ to a second major road unnecessary. Moreover, in contravention of the Village Code, the Planning Board’s finding that Wickes had ‘potential practical access’ to a second major road is insufficient. Accordingly, the Supreme Court should have annulled the Planning Board’s determination granting the special use permit.”

The Court also found that the “… Supreme Court should also have annulled the Planning Board’s determination to approve the site plan. A local planning board has broad discretion in deciding applications for site plan approvals, and judicial review is limited to determining whether the board’s action was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Beekman Delamater Props., LLC v Village of Rhinebeck Zoning Bd. of Appeals, 150 AD3d 1099, 1102-1103; Matter of Saint James Antiochian Orthodox Church v Town of Hyde Park Planning Bd., 132 AD3d 687, 688; Matter of Hejna v Planning Bd. of Vil. of Amityville, 105 AD3d 846). Village Code § 230-45 states that the Planning Board ‘shall not approve a site plan unless it shall find that such plan conforms [with] the requirements of [the Village Zoning Law].’ Since the Village Zoning Law requires that a lot in the R—35 zoning district have a maximum gross impervious surface ratio of .25 (see Village Code § 230 Attachment I), the Planning Board abused its discretion in approving the site plan, which had a proposed gross impervious surface ratio of .44.”

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