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

163
CA 11-00744
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF YOUNG DEVELOPMENT, INC. AND
PEOPLE, INC., PETITIONERS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

TOWN OF WEST SENECA, WEST SENECA TOWN BOARD AND
WALLACE C. PIOTROWSKI, SHEILA M. MEEGAN AND
DALE F. CLARKE, SAID PERSONS CONSTITUTING THE
WEST SENECA TOWN BOARD, RESPONDENTS-APPELLANTS.


HURWITZ & FINE, P.C., BUFFALO (AUDREY SEELEY OF COUNSEL), FOR
RESPONDENTS-APPELLANTS.

LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (RALPH C. LORIGO OF
COUNSEL), FOR PETITIONERS-RESPONDENTS.


     Appeal from a judgment (denominated decision, order and judgment)
of the Supreme Court, Erie County (Gerald J. Whalen, J.), entered
March 1, 2011 in a proceeding pursuant to CPLR article 78. The
judgment granted the petition, vacated respondents’ denial of
petitioners’ application for a special permit and directed respondents
to issue the special permit.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Respondents appeal from a judgment granting the
petition to annul the determination of respondent West Seneca Town
Board (Board) denying petitioners’ application for a special use
permit. Preliminarily, we reject respondents’ contention that the
petition was not timely filed within 30 days of the Board’s
determination pursuant to Town Law § 274-b (9). Rather, we conclude
that, “[b]ecause the petition seeks to review the determination of the
. . . Board, the four-month limitation period of CPLR 217 applies”
(Matter of Sucato v Town Bd. of Boston, 187 AD2d 1045), thus rendering
the petition timely filed. We further conclude that Supreme Court
properly held that the Board’s denial of the application for a special
use permit was illegal, arbitrary and capricious and an abuse of
discretion (see generally Matter of Violet Realty, Inc. v City of
Buffalo Planning Bd., 20 AD3d 901, 902, lv denied 5 NY3d 713). It is
well settled that town boards have broad discretion and that their
determinations should be sustained on judicial review if such
determinations have a rational basis in the record (see Matter of
Pelican Point LLC v Hoover, 50 AD3d 1497, 1498). Furthermore, a
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                                                         CA 11-00744

reviewing court may not substitute its judgment for that of a town
board, “even if there is substantial evidence supporting a contrary
determination” (Matter of Conway v Town of Irondequoit Zoning Bd. of
Appeals, 38 AD3d 1279, 1280). Here, however, we conclude that there
is no support in the record for the Board’s determination. Contrary
to respondents’ contention, petitioners established that the sewer
system of respondent Town of West Seneca would have sufficient
capacity to support the project and, in any event, petitioners agreed
to engage in remediation efforts recommended by the New York State
Department of Environmental Conservation. There is no expert evidence
in the record that the remediation proposed by petitioners is
unsatisfactory. With respect to the comprehensive plan issue, it is
well settled that the inclusion of a permitted use in a zoning code
“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 NY2d 238, 243). Given the absence of
support in the record for the Board’s determination, we conclude that
the Board impermissibly based its determination on “generalized
community objections” (Matter of Ifrah v Utschig, 98 NY2d 304, 308).




Entered:   January 31, 2012                    Frances E. Cafarell
                                               Clerk of the Court
