Hitner v. Planning Bd. of the Town of Patterson

• Decision Date: 23 January 2019
• Docket Number: Index Nos. 2607/16, 3067/16,2017–08738
• Citation: 168 A.D.3d 939,90 N.Y.S.3d 898 (Mem)
• Parties: In the Matter of Harry HITNER, et al., Petitioners, v. PLANNING BOARD OF THE TOWN OF PATTERSON, et al., Respondents. (Proceeding No. 1) In the Matter of Harry Hitner, Petitioner-Appellant, v. Town of Patterson Zoning Board of Appeals, et al., Respondents-Respondents; Michele Sweig, Nonparty-Appellant. (Proceeding No. 2)
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 939
90 N.Y.S.3d 898 (Mem)

In the Matter of Harry HITNER, et al., Petitioners,
v.
PLANNING BOARD OF THE TOWN OF PATTERSON, et al., Respondents.

(Proceeding No. 1)

In the Matter of Harry Hitner, Petitioner-Appellant,
v.
Town of Patterson Zoning Board of Appeals, et al., Respondents-Respondents;

Michele Sweig, Nonparty-Appellant.

(Proceeding No. 2)

2017–08738
Index Nos. 2607/16, 3067/16

Supreme Court, Appellate Division, Second Department, New York.

Submitted—October 11, 2018
January 23, 2019

James Bacon, New Paltz, NY, for petitioner-appellant and nonparty-appellant.

Hogan & Rossi, Brewster, N.Y. (Nancy Tagliafierro of counsel), for respondents—respondents.

Oxman Law Group, PLLC, White Plains, N.Y. (Lois N. Rosen of counsel), for respondent Patterson Crossing Realty Company, LLC, in Proceeding No. 1.

JOHN M. LEVENTHAL, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

168 A.D.3d 939

ORDERED that the appeal by Michele Sweig is dismissed, as she is not aggrieved by the portion of the judgment appealed from (see CPLR 5511 ); and it is further,

ORDERED that the judgment is affirmed insofar as appealed from by Harry Hitner; and it is further,

ORDERED that one bill of costs is awarded to the respondents-respondents.

In this proceeding pursuant to CPLR article 78, the petitioner, Harry Hitner, challenged a determination of the Town of Patterson Zoning Board of Appeals (hereinafter the ZBA) that a proposed gasoline fueling station is a permitted principal use under the Town Code. In a judgment dated July 7, 2017, the Supreme Court, inter alia, in effect, denied the petition and dismissed the proceeding. This appeal followed.

"[T]he general rule is that a determination of a zoning board of appeals should not be set aside unless it is illegal, arbitrary and capricious, or an abuse of discretion" ( Matter of BBJ Assoc., LLC v. Zoning Bd. of Appeals of Town of Kent , 65 A.D.3d 154, 160, 881 N.Y.S.2d 496 ; see Matter of Pecoraro v. Board of Appeals of Town of Hempstead , 2 N.Y.3d 608,...