Summary
annulling denial of application for site plan approval on ground that, inter alia, planning board's determination that parking was inadequate found "no support in the record"
Summary of this case from Westchester Day School v. Village of MamaroneckOpinion
February 2, 1987
Appeal from the Supreme Court, Westchester County (Marbach, J.).
Ordered that the judgment, dated July 9, 1985, is affirmed insofar as appealed from, without costs or disbursements, and it is further,
Ordered that the appeal from the order entered August 28, 1986 is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument.
The Planning Board's determination denying the petitioners' application for site plan approval was arbitrary and capricious and was thus properly annulled. The Board's conclusions that the proposed marina would cause excessive noise and traffic, that the parking facilities were inadequate, and that the safety of boaters was threatened simply finds no support in the record. Moreover, increased traffic and noise levels which would normally be associated with the establishment of a marina provide no basis for withholding approval of the site plan since the area is commercially zoned and a marina is a use permitted therein as a matter of right (see, Matter of North Shore Steak House v. Board of Appeals, 30 N.Y.2d 238, 243). Furthermore, the alternate grounds presently relied upon by the appellants in urging a confirmation of the determination need not be addressed on appeal since they are prohibited from now raising arguments in support of the determination that were not cited in the decision (see, Bernstein v. Board of Appeals, 60 Misc.2d 470, 474; see also, LoGrippo v. Whalley, 84 A.D.2d 829; Matter of Steiert v. Epstein, 15 A.D.2d 532).
Although the appellants denominated their motion made one year after entry of the judgment as one for renewal, a reading of the papers submitted in support of that motion reveals that it was actually one for reargument as they failed to raise any new facts which were previously unavailable to them (see, Galaxy Export v Bedford Textile Prods., 89 A.D.2d 576). Mollen, P.J., Thompson, Weinstein and Rubin, JJ., concur.