Sullivan v. Town Bd. of Town of Riverhead

• Decision Date: 04 June 1984
• Parties: In the Matter of Joseph SULLIVAN, et al., Appellants, v. TOWN BOARD OF the TOWN OF RIVERHEAD, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 578

476 N.Y.S.2d 578

102 A.D.2d 113

In the Matter of Joseph SULLIVAN, et al., Appellants, v. TOWN BOARD OF the TOWN OF RIVERHEAD, Respondent.

Supreme Court, Appellate Division,

Second Department.

June 4, 1984.

Joel M. Markowitz, Smithtown, for appellants.

Behringer, Hurley & Danowski, Riverhead, for respondent.

Before MANGANO, J.P., and GIBBONS, WEINSTEIN and NIEHOFF, JJ.

PER CURIAM.

Petitioners are the owners of a mobile home park located in Wading River, New York, which is within the confines of the Town of Riverhead in Suffolk County. The premises were first permanently licensed by the respondent Town Board of the Town of Riverhead in December of 1978, at which time 21 units were apparently authorized. In July of 1981, the petitioners applied for a special use permit to authorize the placement of additional units upon their premises and, in support of their application, submitted two alternate proposals, designated "Scheme 1" and "Scheme 2". Scheme 1, as originally constituted, called for the addition of six new mobile home units to the park, while Scheme 2 called for the addition of four such units. In addition, an area variance was requested in connection with the implementation of Scheme 2, since certain of the proposed new units under that plan would not have had the required setback from one of the adjoining property lines.

On May 19, 1982, the Town Board of the Town of Riverhead denied petitioners' application, but, in an ensuing article 78 proceeding, that determination was vacated and the matter was remitted to the town board "for the purpose of making proper findings of fact and delineating those findings which provide the basis for its determination and to conduct any further proceedings, including referral to the Planning Board, necessary to comply with this decision". Further proceedings, including a referral back to the planning board, were thereafter conducted, and on January 4, 1983, the petitioners' application was again the subject of a public hearing before the town board. During the course of these proceedings, the petitioners, through their attorney, both orally and in writing, submitted two compromise proposals to the respondent board, each of which had the effect of reducing by two the number of additional units requested in Schemes 1 and 2, and one of which had the further effect of eliminating the need for an area variance under Scheme 2. Thus, on January 4, 1983, there were a total of four alternative proposals pending before the town board.

Nevertheless, on April 5, 1983, the Town Board of the Town of Riverhead adopted a resolution denying the petitioners' application in toto, and promulgating in support thereof a number of findings which generally paralleled the provisions of section 108-3 (subd E, pars ) of the Riverhead Town Code, dealing with the issuance of special permits. Petitioners thereupon commenced the within proceeding to vacate the determination of the respondent board and to direct the issuance of a special use permit sanctioning the expansion of their mobile park, which proceeding was dismissed by Special Term on November 23, 1983. This appeal followed.

We reverse.

Although it is true that "inclusion of permitted use in ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood" (Matter of North Shore Steak House v. Board of Appeals of Inc. Vil. of Thomaston, 30 N.Y.2d 238, 243, 331 N.Y.S.2d 645, 282 N.E.2d 606; see Matter of Pleasant Val. Home Constr. v. Van Wagner, 41 N.Y.2d 1028, 395 N.Y.S.2d 631, 363 N.E.2d 1376), it does not necessarily follow that requests for special permits must always be granted, subject only to the imposition of reasonable conditions. As the Court of Appeals stated in Matter of Tandem Holding Corp. v. Board of Zoning Appeals, 43 N.Y.2d 801, 802, 402 N.Y.S.2d 388, 373 N.E.2d 282: "Entitlement to a special exception is not a matter of right * * * The stated standards in the ordinance guiding the board's consideration of special exception applications conditions availability of a special exception, and compliance with those standards must be shown before any exception can be secured" (emphasis supplied; see, also, Matter of Robert Lee Realty Co. v. Village of Spring Val., 61 N.Y.2d 892, 474 N.Y.S.2d 475, 462 N.E.2d 1193). Accordingly, where, as here, the applicable zoning ordinance specifically provides that it shall be unlawful to operate a mobile home park within the confines of the geographical subdivision without a permit issued in accordance with its provisions (Riverhead Town Code, § 79-6), and where another section of that same chapter further provides that in the event of any conflict, inter alia, between its provision and the balance of the zoning ordinance, "the provision or requirement which is the more restrictive or which establishes the higher standard shall prevail" (Riverhead Town Code, § 79-5), the petitioners cannot...