        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

508
CA 13-01765
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF CRAIG R. DIETRICH,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

PLANNING BOARD OF TOWN OF WEST SENECA AND
TOWN OF WEST SENECA, RESPONDENTS-APPELLANTS.


GOLDBERG SEGALLA LLP, BUFFALO (CHRISTOPHER BOPST OF COUNSEL), FOR
RESPONDENTS-APPELLANTS.

LIPPES MATHIAS WEXLER FRIEDMAN, LLP, BUFFALO (DENNIS C. VACCO OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (Joseph R. Glownia, J.), entered December 4, 2012 in a
proceeding pursuant to CPLR article 78. The judgment, among other
things, vacated and annulled the determination of respondent Planning
Board of the Town of West Seneca, which denied petitioner’s site plan
request.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs and the petition is
dismissed.

     Memorandum: In this proceeding pursuant to CPLR article 78,
respondents appeal from a judgment that, inter alia, vacated and
annulled the determination denying petitioner’s site plan request to
construct an all-terrain vehicle (ATV) track on his property.
Respondents contend that Supreme Court erred in concluding that
respondents proceeded in excess of their jurisdiction by requiring
petitioner to submit a site plan, and further erred in vacating and
annulling the determination of respondent Planning Board of the Town
of West Seneca (Planning Board). We agree, and we therefore reverse
the judgment and dismiss the petition.

     As a threshold matter, we agree with the Planning Board that its
requirement of a site plan was “neither irrational, unreasonable nor
inconsistent with the governing [code]” (Matter of Emmerling v Town of
Richmond Zoning Bd. of Appeals, 67 AD3d 1467, 1467 [internal quotation
marks omitted]; see Matter of New York Botanical Garden v Bd. of Stds.
& Appeals of City of N.Y., 91 NY2d 413, 419). As relevant here, the
West Seneca Town Code (Code) excepts from the site plan requirement
any “[p]ermitted accessory residential structures and uses” (§ 102-2
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                                                         CA 13-01765

[B]; see generally Town Law § 274-a [2] [a]). Inasmuch as the
proposed site of the ATV track is zoned R-65A, permissible uses of the
property include, inter alia, private garages or off-street parking
areas, family swimming pools, greenhouses, and horse stables (see Code
§ 120-13 [B] [1-4]; see also § 120-14 [B] [1]), as well as “[o]ther
customary accessory uses” (§ 120-14 [B] [7]).

     We further agree with the Planning Board that it did not act
irrationally or unreasonably when it determined that the ATV track,
which features six- to eight-foot jumps and “rumble strips,” does not
fall within the definition of “[o]ther customary accessory uses” (see
generally Matter of Granger Group v Town of Taghkanic, 77 AD3d 1137,
1138, lv denied 16 NY3d 781). Although a separate provision of the
Code permits limited use of recreational vehicles on private property
(see § 117-3), no reference is made therein to the construction of ATV
tracks with features similar to those of professional racetracks.
Furthermore, we cannot agree with petitioner that this case is similar
to cases involving worn paths that developed from the use of
recreational vehicles over time (see Matter of Spinella v Town of
Paris Zoning Bd. of Appeals, 191 Misc 2d 807, 809). We therefore
conclude that the Planning Board did not err in requiring petitioner
to submit a site plan for approval.

     With respect to respondents’ contention that the court erred in
vacating and annulling the Planning Board’s determination, we note
that “[t]he authority to approve or deny applications for site
development plans is generally vested in local planning boards”
(Matter of Valentine v McLaughlin, 87 AD3d 1155, 1157, lv denied 18
NY3d 804, citing Town Law § 274-a [2] [a]). Thus, “[i]n conducting .
. . site plan review, the Planning Board is required to set
appropriate conditions and safeguards which are in harmony with the
general purpose and intent of the Town’s zoning code . . . To this
end, a planning board may properly consider criteria such as whether
the proposed project is consistent with the use of surrounding
properties, whether it would bring about a noticeable change in the
visual character of the area, and whether the change would be
irreversible” (id. [internal quotation marks omitted]).

     Judicial review is thus limited to the issue “whether the action
taken by the [Planning B]oard was illegal, arbitrary, or an abuse of
discretion” (Matter of Kempisty v Town of Geddes, 93 AD3d 1167, 1169,
lv denied 19 NY3d 815, rearg denied, 21 NY3d 930 [internal quotation
marks omitted]). The Planning Board’s determination should therefore
be sustained so long as it “has a rational basis and is supported by
substantial evidence” (Matter of Pelican Point LLC v Hoover, 50 AD3d
1497, 1498 [internal quotation marks omitted]). Indeed, “[a]
‘reviewing court may not substitute its judgment for that of the . . .
[Planning B]oard, even if there is substantial evidence supporting a
contrary determination’ ” (Matter of Violet Realty, Inc. v City of
Buffalo Planning Bd., 20 AD3d 901, 902, lv denied 5 NY3d 713).

     With those legal principles in mind, we conclude that there is
substantial evidence to support the Planning Board’s determination
that the ATV track is inconsistent with the residential use of
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                                                         CA 13-01765

surrounding properties (see Valentine, 87 AD3d at 1157). Put simply,
the evidence in the record establishes that the track would increase
already existing problems, including the noise level in the
neighborhood, the number of incidents of physical damage and trespass
to neighboring properties, and the potential for neighboring
landowners to be held liable for injuries occurring on their
properties.

     Having concluded that there was a rational basis for the Planning
Board’s denial of petitioner’s request for site plan approval, we turn
to petitioner’s contention that the matter must be remitted to the
Planning Board for the requisite factual findings. We reject that
contention. “Generally, findings of fact which show the actual
grounds of a decision are necessary for an intelligent judicial review
of a quasi-judicial or administrative determination” (Matter of
Livingston Parkway Assn., Inc. v Town of Amherst Zoning Bd. of
Appeals, 114 AD3d 1219, 1219-1220 [internal quotation marks omitted]).
Here, despite petitioner’s contention to the contrary, the Planning
Board adequately set forth specific findings of fact by indicating
that its determination was based on concerns about trespassers and
liability, property damage, and noise pollution. In any event, even
assuming, arguendo, that such findings were inadequate, we conclude
that remittal is unnecessary where, as here, the record as a whole
addresses the applicable considerations or otherwise provides a basis
for concluding that there was a rational basis for the Planning
Board’s determination (see generally Matter of Paloma Homes, Inc. v
Petrone, 10 AD3d 612, 614; Matter of Fischer v Markowitz, 166 AD2d
444, 445).




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
