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

374
CA 11-01460
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF ROYAL MANAGEMENT, INC.,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

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.


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.


     Appeal from a judgment (denominated order and judgment) of the
Supreme Court, Erie County (Timothy J. Drury, J.), entered April 1,
2011 in a proceeding pursuant to CPLR article 78. The judgment
granted the petition, annulled and vacated the determination of
respondent West Seneca Town Board and directed respondents to issue a
special permit to petitioner.

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

     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 AD2d 1045), 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 AD3d 1350).

     With respect to the merits, we conclude that Supreme Court
properly determined that the denial by the Town Board of petitioner’s
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                                                         CA 11-01460

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 project in that same area and stated that the sewer had
the capacity to handle the larger project.

     There is similarly no support in the record for the Town Board’s
determination with respect to the second ground, i.e., that the
proposed apartment building would not be in conformance with the
existing properties in the immediate adjacent area. Indeed, the
record reflects that the Town’s Code Enforcement Officer informed the
Town Board that the property was properly zoned for the project, that
the lot was large enough for the building, and that the use would be
in conformance with the Town Code. Notably, the Town’s Code
Enforcement Officer also stated that there were multiple dwellings
within 200 feet of the project with a similar orientation, inasmuch as
they too were perpendicular to the road. 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). We therefore conclude that there was no
basis for the Town Board’s determination that the proposed building
would be aesthetically out of character with the existing properties
in the immediate adjacent area.




Entered:   March 23, 2012                      Frances E. Cafarell
                                               Clerk of the Court
