Cuddy & Feder, led by the joint litigation and land use, zoning and development team of Brendan Goodhouse, Taylor Palmer, and Allison Fausner won the Town/Village of Harrison’s appeal to the Second Department Appellate Division of a Supreme Court order directing the Town/Village and its Planning Board to grant its client site plan approval for a proposed Dunkin’ drive-through. BKP Harrison, LLC (BKP), v Town/Village of Harrison, _____ AD3d _______ (Index No. 56867/22) (2d Dept. April 29, 2026.
In the underlying case, (Index No. 56867/22), BKP challenged the Town/Village of Harrison Planning Board’s denial of BKP’s site plan application proposing to add an accessory drive-through to an existing Dunkin’ location. In the Article 78 petition filed with the Supreme Court, Westchester County, BKP asserted several claims related to the Planning Board’s treatment of BKP’s application, including the Planning Board inappropriately based the denial on the Board’s general opposition to a drive-through even though it is a permitted as-of-right accessory use; the Planning Board’s denial for purported concerns about traffic impacts lacked a rational basis because they imposed a heightened and unlawful standard on BKP’s application and the concerns were speculative and not supported by the record; and the Planning Board exceeded its authority in finding that BKP required a variance and referring to a private easement agreement as grounds for denial.
In a thorough decision, the Supreme Court, Westchester County granted BKP’s petition, annulled the Planning Board’s denial, and directed the Planning Board to grant BKP’s application for a site plan approval. The Supreme Court found the Planning Board lacked sufficient evidence to support the rationality of its determination, which the Court found was based largely on speculation about potential negative traffic and pedestrian impacts that were not supported by the record.
The Supreme Court also found that it was legal error for the Planning Board to rely on its view that BKP’s application may require variance relief as a basis for denial, since that was an issue for the Town’s Code Enforcement Officer and ZBA and outside of the Planning Board’s jurisdiction.
After the Town appealed, the Second Department affirmed the Supreme Court’s decision, echoing the Supreme Court’s findings that since it was based on speculative concerns not supported by the record, the Planning Board’s determination was arbitrary and capricious. The Second Department further found that the Planning Board exceeded its jurisdiction by basing its denial upon a purported variance that BKP needed.
The case is an example of the need for a thoughtful and collaborative strategy when a meritorious project faces general opposition from local boards. With the strong record developed during the Planning Board review process, we were able to bring about a successful conclusion for our client through the last resort of litigation.