Development

Supreme Ct., Westchester Cty

(Nicolai, J.)

Lessee brought an article 78 proceeding to annul the village board's determination not to renew its special use permit. The court granted the petition, holding that the board's denial of the permit was not supported by substantial evidence.

In 1988, the village issued a special use permit authorizing operation of a wood processing and recycling transfer station on the property. In 1997, a new entity leased the property and received a renewal and transfer of the pre-existing special use permit. The new lessee also obtained a solid waste management permit from the State Department of Environmental Conservation. Lessee then spent $1.5 million on clean-up of the property and $2 million on site improvement. In 1998, the village renewed the special use permit for a 3-year period, subject to numerous conditions. In 2000, current lessee acquired the assets of prior lessee for $10 million, with the expectation that it would operate on the leased premises for many years.

When current lessee applied for renewal of the special use permit, however, the village board denied the application based on violations of the previous permit, including mishandling of unauthorized waste, exceeding maximum permitted tonnage, and failure to keep appropriate records. Lessee then brought this article 78 proceeding.

In annulling the board's determination, the court emphasized that the violations of the special use permit had been cured, penalties were assessed and paid, and lessee has implemented measures to assure ongoing permit compliance. The court noted that the classification of the use as permitted in a zoning district is “tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan.” As a result, the board was obligated to grant the special permit unless it had reasonable grounds for denial, supported by substantial evidence. Here, in light of lessee's cure of past violations and implementation of measures to insure future compliance, the court concluded that there was no substantial evidence to support the board's action.

COMMENT

Prior to its 2002 decision in Retail Property Trust v. Board of Zoning Appeals, 98 NY2d 190, the Court of Appeals had held that classification of a use as a special use is “tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood.” Matter of North Shore Steak House, Inc. v. Board of Appeals, 30 NY2d 238, 243. As a result, boards were generally required to grant the special permit subject to conditions necessary to minimize harmful impact on the surrounding area. See Matter of Carrol's Development Corp. v. Gibson, 53 NY2d 813.

As recently as 1997, in Matter of Twin County Recycling Corp. v. Yevoli, 90 NY2d 1000, the Court of Appeals reiterated that generalized community pressure was insufficient to support denial of a special use permit. In that case, applicants sought to renew a permit for an asphalt recycling plant, and presented expert testimony from several industry professionals, together with a finding by the state Department of Environmental Conservation that the plant was in compliance with government regulation. The court held that on this record, absent substantial evidence to the contrary, the board was not entitled to deny the application. In its brief memorandum, however, the court indicated that “scientific or expert testimony is surely not in every case required to support a zoning board determination,” but did not indicate what, short of expert or scientific testimony, would count as substantial evidence sufficient to support denial of a special permit.

In Retail Property Trust, supra, the Court of Appeals appeared to modify the traditional approach to special permits by lowering the threshold required to support a board's denial of a special permit. In that case, the court upheld the decision of the zoning board to deny a special permit when the only evidence provided by the neighbors was rebuttal evidence. In particular, petitioners provided a traffic impact study indicating that expansion would have a minimal effect on traffic, and an air quality study indicating that expansion would have little effect on air quality. The neighbors' experts challenged the methodology of the traffic impact study, and pointed to a government study assessing generalized traffic conditions in Nassau County.

Despite the lack of concrete proof of harm, the court deferred to the board's conclusion, concluding that the board's determination had been supported by substantial evidence. It is not clear whether Metro Enviro Transfer is consistent with the new deferential approach articulated in Retail Property Trust.

Denial of Special Use Permit Renewal

Metro Enviro Transfer, LLC v. Village of Croton-On-Hudson

NYLJ 3/6/03, p. 25, col. 3

Supreme Ct., Westchester Cty

(Nicolai, J.)

Lessee brought an article 78 proceeding to annul the village board's determination not to renew its special use permit. The court granted the petition, holding that the board's denial of the permit was not supported by substantial evidence.

In 1988, the village issued a special use permit authorizing operation of a wood processing and recycling transfer station on the property. In 1997, a new entity leased the property and received a renewal and transfer of the pre-existing special use permit. The new lessee also obtained a solid waste management permit from the State Department of Environmental Conservation. Lessee then spent $1.5 million on clean-up of the property and $2 million on site improvement. In 1998, the village renewed the special use permit for a 3-year period, subject to numerous conditions. In 2000, current lessee acquired the assets of prior lessee for $10 million, with the expectation that it would operate on the leased premises for many years.

When current lessee applied for renewal of the special use permit, however, the village board denied the application based on violations of the previous permit, including mishandling of unauthorized waste, exceeding maximum permitted tonnage, and failure to keep appropriate records. Lessee then brought this article 78 proceeding.

In annulling the board's determination, the court emphasized that the violations of the special use permit had been cured, penalties were assessed and paid, and lessee has implemented measures to assure ongoing permit compliance. The court noted that the classification of the use as permitted in a zoning district is “tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan.” As a result, the board was obligated to grant the special permit unless it had reasonable grounds for denial, supported by substantial evidence. Here, in light of lessee's cure of past violations and implementation of measures to insure future compliance, the court concluded that there was no substantial evidence to support the board's action.

COMMENT

Prior to its 2002 decision in Retail Property Trust v. Board of Zoning Appeals, 98 NY2d 190, the Court of Appeals had held that classification of a use as a special use is “tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood.” Matter of North Shore Steak House, Inc. v. Board of Appeals, 30 NY2d 238, 243. As a result, boards were generally required to grant the special permit subject to conditions necessary to minimize harmful impact on the surrounding area. See Matter of Carrol's Development Corp. v. Gibson, 53 NY2d 813.

As recently as 1997, in Matter of Twin County Recycling Corp. v. Yevoli, 90 NY2d 1000, the Court of Appeals reiterated that generalized community pressure was insufficient to support denial of a special use permit. In that case, applicants sought to renew a permit for an asphalt recycling plant, and presented expert testimony from several industry professionals, together with a finding by the state Department of Environmental Conservation that the plant was in compliance with government regulation. The court held that on this record, absent substantial evidence to the contrary, the board was not entitled to deny the application. In its brief memorandum, however, the court indicated that “scientific or expert testimony is surely not in every case required to support a zoning board determination,” but did not indicate what, short of expert or scientific testimony, would count as substantial evidence sufficient to support denial of a special permit.

In Retail Property Trust, supra, the Court of Appeals appeared to modify the traditional approach to special permits by lowering the threshold required to support a board's denial of a special permit. In that case, the court upheld the decision of the zoning board to deny a special permit when the only evidence provided by the neighbors was rebuttal evidence. In particular, petitioners provided a traffic impact study indicating that expansion would have a minimal effect on traffic, and an air quality study indicating that expansion would have little effect on air quality. The neighbors' experts challenged the methodology of the traffic impact study, and pointed to a government study assessing generalized traffic conditions in Nassau County.

Despite the lack of concrete proof of harm, the court deferred to the board's conclusion, concluding that the board's determination had been supported by substantial evidence. It is not clear whether Metro Enviro Transfer is consistent with the new deferential approach articulated in Retail Property Trust.