Royal Mgmt., Inc. v. Town of West Seneca

• Decision Date: 23 March 2012
• Parties: In the Matter of ROYAL MANAGEMENT, INC., Petitioner–Respondent, v. TOWN OF WEST SENECA, West Seneca Town Board, Wallace C. Piotrowski, and Sheila M. Meegan and Dale F. Clarke, Said Persons Constituting West Seneca Town Board, Respondents–Appellants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02230

93 A.D.3d 1338

940 N.Y.S.2d 766

In the Matter of ROYAL MANAGEMENT, INC., Petitioner–Respondent,

v.TOWN OF WEST SENECA, West Seneca Town Board, Wallace C. Piotrowski, and Sheila M. Meegan and Dale F. Clarke, Said Persons Constituting West Seneca Town Board, Respondents–Appellants.

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

March 23, 2012.

Hurwitz & Fine, P.C., Buffalo (Ashley Westbrook of Counsel), for Respondents–Appellants.

Law Office of Ralph C. Lorigo, West Seneca (Ralph C. Lorigo of Counsel), for Petitioner–Respondent.

PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.

MEMORANDUM:

In this proceeding pursuant to CPLR article 78, respondents appeal from a judgment annulling the determination of respondent West Seneca Town Board (Town Board) and directing respondents to issue a special use permit to petitioner authorizing the construction of a two-story apartment building on Orchard Park Road in respondent Town of West Seneca (Town). As a preliminary matter, we note that respondents contend that this proceeding is time-barred because it was not commenced within 30 days after the filing of the Town Board's determination in the Town Clerk's office, as required by Town Law § 274–b(9). We reject that contention. “Because the petition seeks to review the determination of the Town Board, the four-month limitation period of CPLR 217 applies” ( Matter of Sucato v. Town Bd. of Boston, 187 A.D.2d 1045, 590 N.Y.S.2d 363), not the shorter limitations period set forth in Town Law § 274–b(9) ( see Matter of Young Dev., Inc. v. Town of W. Seneca, 91 A.D.3d 1350, 937 N.Y.S.2d 512).

With respect to the merits, we conclude that Supreme Court properly determined that the denial by the Town Board of petitioner's application for a special use permit was arbitrary and capricious and an abuse of discretion. Following several public hearings, the Town Board denied petitioner's application on two grounds, namely, that the “sewer system in the area ... is in very poor shape,” having recently experienced severe failures and backups and that, “[d]ue to the shape of the lot, the proposed project does not conform to the existing properties in the immediate adjacent area.” Regarding the first ground, petitioner correctly notes that there is no evidence in the record supporting the Town Board's purported concern about the sewer system. In fact, the record demonstrates that, shortly before petitioner's application was denied, the Town Engineer engaged in a discussion with the Town Board with respect to a substantially larger construction...