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Supreme Court, Appellate Division, Second Department, New York.

IN RE: CLUBSIDE, INC., Petitioner-Respondent, v. TOWN BOARD, TOWN OF WALLKILL, Appellant, Clubside Investors, LLC, Intervenor-Respondent.

Decided: September 23, 2002

FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES and BARRY A. COZIER, JJ. Drake, Sommers, Loeb, Tarshis & Catania, PLLC, Newburgh, N.Y. (Stephen J. Gaba of counsel), for appellant. Bonacic, Blustein & Krahulik, LLP, Middletown, N.Y. (Rita G. Rich of counsel), for petitioner-respondent. Alex Smith, Middletown, NY, for intervenor-respondent.

In a proceeding pursuant to CPLR article 78 to review a determination of the Town Board, Town of Wallkill, dated September 28, 2000, denying the petitioner's application to extend the Town of Wallkill sewer district to the petitioner's property, the Town Board, Town of Wallkill, appeals from a judgment of the Supreme Court, Orange County (Slobod, J.), dated March 30, 2001, which annulled its determination and directed it to grant the petitioner's application.

ORDERED that the judgment is affirmed, with costs.

The petitioner, Clubside, Inc. (hereinafter Clubside), sought to extend the Town of Wallkill sewer district to its property, where it proposed to build a condominium development.   The availability of municipal water and sewer services is a factor of critical importance to the economic feasibility of the proposed condominium development.   On January 24, 2000, the petitioner submitted an application, with accompanying documentation, for the extension of the water and sewer districts to its property.   After some delay, a public hearing was held.   No opposition to the project was voiced by the public.   On September 28, 2000, the Town Board, Town of Wallkill (hereinafter the Town Board), denied the application.   Thereafter, the petitioner commenced this CPLR article 78 proceeding to review the determination.   The Town Board learned after the commencement of the proceeding that the petitioner's property is located within the water district, leaving the extension of the sewer district as the only issue for resolution by the Supreme Court.

Although the Town Board did not state the grounds for its determination, it was evident, based on the detailed affidavit of the Town Supervisor submitted in opposition to the petition, that the grounds for the denial were the unsubstantiated fears of the individual members of the Town Board that the condominium development posed public health problems and that the addition of school-age children would burden the local school system.   We agree with the Supreme Court's conclusion that the determination of the Town Board was arbitrary and capricious (see Kraizberg v. Shankey, 167 A.D.2d 370, 561 N.Y.S.2d 600;  see also Matter of Svenningsen v. Passidomo, 62 N.Y.2d 967, 479 N.Y.S.2d 335, 468 N.E.2d 290;  Town of Lima v. Harper, 55 A.D.2d 405, 411, 390 N.Y.S.2d 752, affd. 43 N.Y.2d 980, 404 N.Y.S.2d 597, 375 N.E.2d 777).

The remaining contentions of the Town Board are without merit.

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