What did the court decide?

The appellate court affirmed the lower court and annulled the planning board's denial, directing the board to grant BKP Harrison's amended site plan application.

Who is affected by this decision?

BKP Harrison, the Town/Village of Harrison, its planning board, and nearby residents or motorists affected by the proposed restaurant and drive-through.

Why was the planning board's denial invalid?

The denial rested on speculative traffic assumptions, subjective concerns about promised delivery hours, an improper interpretation of zoning law, and reliance on a study not shared with the applicant.

The planning board must grant the amended site plan approval as directed by the courts, subject to any lawful ministerial conditions or further proceedings consistent with the opinion.

Can the town appeal this decision?

Yes; parties generally may seek further appellate review, though the document does not state whether the town pursued or intends to pursue further appeal to the Court of Appeals.

Matter of BKP Harrison, LLC v. Town/Vil. of Harrison

Docket 2022-07063

Court of record · Indexed in NoticeRegistry archive · AI-enriched for research

CivilAffirmed

Filed: Apr 29, 2026 · 2 days ago
Jurisdiction: New York
Court: Appellate Division of the Supreme Court of the State of New York
Type: Opinion
Case type: Civil
Disposition: Affirmed
Citation: 2026 NY Slip Op 02649
Docket: 2022-07063

Appeal from a CPLR article 78 proceeding reviewing a planning board determination denying an application for amended site plan approval

Summary

The Appellate Division affirmed a lower court judgment that annulled the Town/Village of Harrison Planning Board's denial of BKP Harrison, LLC's application for amended site plan approval to replace a restaurant with a new restaurant and drive-through. The court held the board's denial was arbitrary and capricious because it relied on speculative traffic predictions, subjective doubts about the applicant honoring delivery-hour commitments, an improper interpretation of zoning (a power reserved to code enforcement and the zoning board of appeals), and a traffic study not shared with the applicant. The appellate court therefore ordered the planning board to grant the application.

Issues Decided

Whether the planning board's denial of the amended site plan was arbitrary and capricious
Whether the planning board improperly interpreted local zoning law by concluding a zoning variance was required
Whether the planning board relied on evidence (a traffic study) not disclosed to the applicant

Court's Reasoning

The court applied the limited standard of judicial review for planning board decisions and found the board's action lacked a rational basis. The denial rested on speculative predictions about driver behavior and subjective concerns about compliance with delivery-hour commitments, which are insufficient to sustain denial. The board also exceeded its authority by effectively interpreting zoning requirements (a function for code enforcement or the zoning board) and relied on a study that was not provided to the applicant, violating procedural fairness. Those defects made the decision arbitrary and capricious, warranting annulment and an order to grant the application.

Authorities Cited

Matter of 7-Eleven, Inc. v Town of Hempstead205 AD3d 909
Matter of Swantz v Planning Bd. of Vil. of Cobleskill34 AD3d 1159
Matter of Bali Two, LLC v Pascale225 AD3d 691

Parties

Respondent: BKP Harrison, LLC
Appellant: Town/Village of Harrison
Appellant: Town/Village of Harrison Planning Board
Judge: Mark C. Dillon, J.P.
Judge: Linda Christopher
Judge: Barry E. Warhit
Judge: Carl J. Landicino

Key Dates

Planning board determination: 2022-01-25
Supreme Court judgment granting petition: 2022-08-17
Appellate Division decision: 2026-04-29

What You Should Do Next

1
Planning board to grant approval
The planning board should enter a determination granting the amended site plan approval consistent with the court's order and document any lawful, objective conditions it imposes.
2
Applicant prepare for implementation
BKP Harrison should finalize any construction or permitting plans and confirm compliance with any stated conditions so it can proceed with the project.
3
Town consider compliance review
The Town/Village may consult counsel to ensure any further actions conform to the court's decision and avoid decisions that could be construed as arbitrary or undisclosed.

Frequently Asked Questions

What did the court decide?: The appellate court affirmed the lower court and annulled the planning board's denial, directing the board to grant BKP Harrison's amended site plan application.
Who is affected by this decision?: BKP Harrison, the Town/Village of Harrison, its planning board, and nearby residents or motorists affected by the proposed restaurant and drive-through.
Why was the planning board's denial invalid?: The denial rested on speculative traffic assumptions, subjective concerns about promised delivery hours, an improper interpretation of zoning law, and reliance on a study not shared with the applicant.
What happens next?: The planning board must grant the amended site plan approval as directed by the courts, subject to any lawful ministerial conditions or further proceedings consistent with the opinion.
Can the town appeal this decision?: Yes; parties generally may seek further appellate review, though the document does not state whether the town pursued or intends to pursue further appeal to the Court of Appeals.

The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.

Full Filing Text

Matter of BKP Harrison, LLC v Town/Vil. of Harrison - 2026 NY Slip Op 02649

Matter of BKP Harrison, LLC v Town/Vil. of Harrison

2026 NY Slip Op 02649

April 29, 2026

Appellate Division, Second Department

In the Matter of BKP Harrison, LLC, respondent,

Town/Village of Harrison, et al., appellants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on April 29, 2026

2022-07063, (Index No. 56867/22)

Mark C. Dillon, J.P.

Linda Christopher

Barry E. Warhit

Carl J. Landicino, JJ.

Phillip A. Grimaldi, Jr., Hawthorne, NY, for appellants.

Cuddy & Feder LLP, White Plains, NY (Brendan M. Goodhouse of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Town/Village of Harrison Planning Board dated January 25, 2022, which, after a hearing, denied the petitioner's application for an amended site plan approval, the Town/Village of Harrison and the Town/Village of Harrison Planning Board appeal from a judgment of the Supreme Court, Westchester County (Susan Cacace, J.), dated August 17, 2022. The judgment granted the petition, annulled the determination, and directed the Town/Village of Harrison Planning Board to grant the application for an amended site plan approval.

ORDERED that the judgment is affirmed, without costs or disbursements.

The petitioner submitted an application to the Town/Village of Harrison Planning Board (hereinafter the planning board) for an amended site plan approval to replace an existing restaurant with a new restaurant and drive-through. After meetings and public hearings, in a determination dated January 25, 2022, the planning board denied the application. The petitioner commenced this proceeding pursuant to CPLR article 78 to review the determination. In a judgment dated August 17, 2022, the Supreme Court granted the petition, annulled the determination, and directed the planning board to grant the application. This appeal ensued.

"A local planning board has broad discretion in deciding applications for site plan approvals, and judicial review is limited to determining whether the board's action was illegal, arbitrary and capricious, or an abuse of discretion" (
Matter of 7-Eleven, Inc. v Town of Hempstead
, 205 AD3d 909, 910;
see
CPLR 7803[3]).

Here, the Supreme Court properly concluded that the planning board's determination was arbitrary and capricious and did not have a rational basis in the record. The planning board's determination was based, in part, on speculative predictions that motorists would not obey certain traffic signals and subjective concerns that the petitioner would not honor its commitment to limit deliveries to certain hours. Moreover, even though "[p]lanning boards are without power to interpret the local zoning law, as that power is vested exclusively in local code enforcement officials and the zoning board of appeals" (
Matter of Swantz v Planning Bd. of Vil. of Cobleskill
, 34 AD3d 1159, 1160;
see

Matter of O'Malley v Town of New Windsor Planning Bd.
, 227 AD3d 808, 810), the
planning board based its denial, in part, on the conclusion that the petitioner would need a zoning variance for the width of its entrance driveways. Further, the planning board improperly relied on a study it conducted that the petitioner was not made aware of until the planning board referred to it in the determination (
see

Matter of Bali Two, LLC v Pascale
, 225 AD3d 691, 692;
Matter of Sunset Sanitation Serv. Corp. v Board of Zoning Appeals of Town of Smithtown,
172 AD2d 755).

Accordingly, the Supreme Court properly granted the petition, annulled the determination, and directed the planning board to grant the application.

DILLON, J.P., CHRISTOPHER, WARHIT and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph