Posted by: Patricia Salkin | June 13, 2010

Condition Annulled for Failure to Relate to Application

The planning board granted the petitioner’s application for certain area variances, site plan approval and a special permit to enable it to construct more tenant space and a drive-through facility at a corner of an existing shopping center, subject to seven conditions, including that the petitioner “provide a perpetual offer of cross-access and cross-parking with adjacent property in the future.” The petitioner challenged this condition on the ground that it was not directly related to its application.  The trial court annulled the condition. 

The appellate court agreed, finding that the record lacked sufficient evidence to support the rationality of its determination. 

In-Towne Shopping Centers, Co. v Planning Board of the Town of Brookhaven, 2010 WL 1911373 (N.Y.A.D. 2 Dept. 5/11/2010). 

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2010/D27320.pdf


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