Agenda - Planning Commission - 03/02/2006

Home

January 25.2006 -- Page 3 Finally, all submitted evidence suggested that McDonald's did everything in its power to obtain the necessary permits to begin construction on the restaurant. Permit -- Condition prohibits curb cut to adjacent road Development had planned for delivery truck access from that road Citation: Milt-Nik Land Corporation v. City of Yonkers, Supreme Court o.f New York, App. Div., 2nd Dept., No. 2004-05615 (2005) NEW YORK (12/05/05) -- Milt-Nkk Land Corporation operated a restaurant on the comer of Delaware and Saw Mill River Roads. It sought to build aa ,~clcl[fion for a pizzeria, but it was denied the necessary permits. Milt-Nkk appealed to the zoning board of appeals. After issuing its initial approval, the b6ard added the condition that there could be no curb cut tween the restaurant and Delaware Road. Milt-Nik sued, arguing that based on its initial plans, the restriction on a curb cut was arbitrary and capricious. DECISION: Judgment in favor of bKlt-Nik. When creating the plan, Milt-Nkk thought that the delivery trucks would enter the property from Saw Mill River Road, bypass the restaurant's parking area, proceed to the rear of the building to be unloaded, and then continue forward, exiting the property through a curb cut in Delaware Road behind the restanrant. This plan represented an effort to improve upon earlier proposals for the development of the property, which had been criticized by the zoning board and other city officials for lacking a satisfactory traffic cixculation pattern. The only explanation for the condition was Milt-Nik's remark that the lack of any curb or other barrier_between the property and Delaware Road created a dangerous condition where Milt-Nkk planned to install a curb and plantings. However, Milt-Nik was referring to the area between the property's front park- ing lot and Delaware Road, where drivers were entering and exiting in a danger- ous and haphazard manner. The board offered no rationale for prohibiting vehicular access f:mm the back of the restaurant. Since the rear access would be used solely for truck deliveries to the restaurant, the restriction for the back of the restaurant was arbitrary and capricious. see also: Pluto's Retreat v. Granito, 80 A.D.2d 899 (1981). see also: 8oyadjian v. 8oard of Appeals of Village of East Hills, 136 A.D.2d 548 (1988). Renew online at www. quinlan, com @ 2008 Quint~n Pul3~isning G~oup. Any reproduc'don is pro~ibite~. For more information please carl (617) 542~048. 133