Cummings v. Town Board of North Castle

— In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Town Board of the Town of North Castle granting a special use permit to Michael Gagliardi for the operation of a nursery on his property, Gagliardi appeals from a judgment of the Supreme Court, Westchester County (Beisheim, J.), dated March 1, 1982, which granted the petition and annulled the determination. Judgment reversed, on the law, with costs, determination confirmed and proceeding dismissed on the merits. In June, 1981 appellant applied for a special use permit for the operation of a nursery on his property, which is situated in a single-family, two-acre residential district in the Town of North Castle. A public hearing was conducted on October 22, 1981 for the purpose of considering the merits of the special use permit application. A petition signed by a number of residents of the Castle Hill Homeowners Association in opposition to the application was submitted to the North Castle Town Board. The basis of the opposition was that the proposed business establishment was not in keeping with the residential character of the neighborhood. At a special meeting of the town board on October 26,1981, appellant was granted a special use permit to operate a nursery on the subject premises. Although it was found that the proposed use would generate a noise level higher than that consistent with residential or other permitted development of the subject property, the board deemed it possible to regulate the production of such noise by imposing limitations upon the hours of operation of the machinery to be used thereon. Accordingly, the board determined that appellant’s application, as modified by 11 enumerated conditions, met the conditions and *819standards set forth in sections 435.1, 435.2, 435.3 and 435.4 of the town’s zoning ordinance. Petitioners, a group of 19 neighboring residents and taxpayers of the Town of North Castle, commenced this article 78 proceeding seeking a review of the determination of the board on the ground that the special use permit illegally condones the use of the subject property for two uses, each categorized as principal. Special Term annulled the determination of the board finding that the special permit had not complied with the pertinent zoning ordinance. We reverse and reinstate the determination of the town board. There exists a sufficient basis in the record to support the determination of the board in granting the special use permit to appellant. In view of the fact that nurseries are permitted uses and since there is nothing in the record to sustain a conclusion that the board abused its discretion in finding that the requirements of sections 435.1, 435.2 and 435.3 had been met, Special Term erred in concluding that these sections had been violated. Mollen, P. J., Titone, Weinstein and Rubin, JJ., concur.