Posted by: Patricia Salkin | July 27, 2018

NY Appellate Court Finds Planning Board’s Determination as to Wetland Control Permit Lacked Factual Basis

This post was authored by Matthew Loeser, Esq.
The petitioner applied to the Planning Board of the Town of Mount Pleasant for a wetland control permit and site plan approval, in order to construct a one-family dwelling and ancillary improvements. The subject property was located in an area where such construction was prohibited under the Town Code of the Town of Mount Pleasant absent the Planning Board’s approval. The Planning Board denied the application by determination dated April 18, 2016, and the petitioner commenced this CPLR article 78 proceeding to review that determination. The Supreme Court, Westchester County, granted the petition, annulled the determination, and directed the Planning Board to grant the petitioner’s application.

On appeal the court found that the Planning Board failed to set forth any factual basis in the determination as to why it was departing from numerous prior determinations that permitted larger encroachments into wetland and wetland buffer areas and permitted encroachments of the same or similar type into those areas within the immediate vicinity of the petitioner’s lot. Furthermore, the court found the Planning Board’s belated effort to provide these distinctions were not properly before the court. Accordingly, the court affirmed the Supreme Court’s holding that the determination of the Planning Board was arbitrary and capricious.
Nicolai v McLaughlin, 2018 WL 3293986 (NYAD 2 Dept. 7/5/2018)

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