The Town Planning Advisory Board approved the petitioner’s site plan application for a 14,727 square foot two-story retail building in a Neighborhood Business District. As originally approved, the first floor was to be divided into retail units and the second floor was for storage. Several years later, the petitioner sought approval of a modified site plan which would use the space on the second floor for 11 residential apartments instead of storage. The zoning district allowed to residential apartments above retail space. An engineering study found that the apartments would add 60 vehicular trips during peak traffic hours, which was one more trip than the previously approved site plan, and that the modified site plan would provide for 73 off-street parking spaces, exceeding the 67 spaces required under the Town Code.
Although the county planning commission approved the modified site plan, following two public hearings where there was much community opposition, the planning board denied the application on the grounds that the apartments located over retail space “would attract undesirable tenants.” The Board also noted concerns over access to the premises, feared excessive traffic congestion and lack of parking. The petitioner appealed and the trial court upheld the decision of the planning board.
The appellate court reversed, finding that the record lacked sufficient evidence to support the board’s determination. The Court noted that the record contradicted the community’s concerns over traffic, parking and access to the property. Further, the Court found that the modified site plan application fully complied with the requirements of the Town Code and was a permitted within the zoning district. The Court concluded that the Board’s determination was improperly based on generalized community opposition and that the application should have been approved. The court annulled the Board’s determination and remitted the matter to the planning board.
Bagga v Stanco, 2011 WL 6415476 (N.Y. A. D. 2 Dept. 12/20/2011)
The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2011/2011_09317.htm