Development

Board's Special Permit Denial Entitled to Deference

Matter of Smyles v. Board of Trustees

NYLJ 8/29/14, p. 25. col. 5

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of a special use permit, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that evidence in the record supported the denial of the permit.

Landowner sought a special use permit to expand a day care facility into neighboring vacant retail space. The Board of Trustees denied the permit, finding that the expansion would result in a dangerous traffic situation, an overintensification of land use with respect to available parking, and a hazard with regard to provision of emergency services. Landowner then brought this article 78 proceeding, challenging the denial, and also alleging that the Board had failed to comply with section 7-725-b(6) of the Village Law, which requires the Board to conduct a public hearing on a special use permit within 62 days of the application, and requires a decision within 62 days after the hearing. Supreme Court denied the petition, and landowner appealed.

In affirming, the Appellate Division acknowledged that a landowner seeking a special use permit bears a lighter burden than a landowner seeking a variance, but the court nevertheless emphasized that when the record includes evidence supporting denial of the special use permit, courts may not substitute their own judgment for that of the reviewing board ' even when evidence in the record would also support grant of the special use permit. Here, the court concluded that testimony by experts and neighbors, together with the personal knowledge of members of the Board, was sufficient to support the Board's denial of the permit. The court also held that the remedy for failure to comply with statutory time limits was not invalidation of the Board's decision, but rather a special proceeding to compel the Board to issue a determination.

COMMENT

In North Shore Steak House, Inc. v. Board of Appeals, 30 N.Y.2d 238, the Court of Appeals established that an applicant for a special permit, unlike an applicant for a variance, need not establish hardship, because inclusion of the specially permitted use in the ordinance reflects a legislative finding that the use is in harmony with the general zoning plan. In North Shore, the court upheld denial of a variance, but overturned denial of a special permit, to a restaurant seeking additional parking space, emphasizing the lighter burden attached to special permit applications.

More recently, while acknowledging the different standards at the applications stage, the Court of Appeals has held that courts should defer to both special permit denials and variance denials by local boards, so long as the board had substantial evidence to support its denial. In Retail Prop. Trust v. Bd. of Zoning Appeals, 98 N.Y.2d 190, the court of upheld a special denial because the Board of Zoning Appeals properly exercised its discretion to credit the opposition's experts who disputed the applicant's claim that its development would have minimal traffic impact claim. On the same day, in Ifrah v. Utschig, 98 N.Y.2d 304, the court applied the same substantial evidence standard to a variance denial.

So long as substantial evidence supports the board's denial, courts will uphold that denial even if, as in Retail Property Trust, the record also includes evidence supporting the application's approval. In Matter of Franklin Sq. Donut Sys., LLC v. Wright, 63 A.D.2d 927, the Second Department upheld denial of an application to renew a special use permit for a drive-thru window when the record included conflicting testimony from local residents about the effect of the drive-thru window on traffic congestion.

Courts, however, will overturn a special permit denial when the record includes no evidence to support the denial For instance, in Matter of White Castle, Inc. v. Board of Zoning Appeals of Town of Hempstead, 93 A.D.3d 731, the court overturned the board's denial of a special permit for a waste enclosure because the record did not include any evidence to support the permit's denial. Id. at 162.

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Board's Special Permit Denial Entitled to Deference

Matter of Smyles v. Board of Trustees

NYLJ 8/29/14, p. 25. col. 5

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of a special use permit, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that evidence in the record supported the denial of the permit.

Landowner sought a special use permit to expand a day care facility into neighboring vacant retail space. The Board of Trustees denied the permit, finding that the expansion would result in a dangerous traffic situation, an overintensification of land use with respect to available parking, and a hazard with regard to provision of emergency services. Landowner then brought this article 78 proceeding, challenging the denial, and also alleging that the Board had failed to comply with section 7-725-b(6) of the Village Law, which requires the Board to conduct a public hearing on a special use permit within 62 days of the application, and requires a decision within 62 days after the hearing. Supreme Court denied the petition, and landowner appealed.

In affirming, the Appellate Division acknowledged that a landowner seeking a special use permit bears a lighter burden than a landowner seeking a variance, but the court nevertheless emphasized that when the record includes evidence supporting denial of the special use permit, courts may not substitute their own judgment for that of the reviewing board ' even when evidence in the record would also support grant of the special use permit. Here, the court concluded that testimony by experts and neighbors, together with the personal knowledge of members of the Board, was sufficient to support the Board's denial of the permit. The court also held that the remedy for failure to comply with statutory time limits was not invalidation of the Board's decision, but rather a special proceeding to compel the Board to issue a determination.

COMMENT

In North Shore Steak House, Inc. v. Board of Appeals, 30 N.Y.2d 238, the Court of Appeals established that an applicant for a special permit, unlike an applicant for a variance, need not establish hardship, because inclusion of the specially permitted use in the ordinance reflects a legislative finding that the use is in harmony with the general zoning plan. In North Shore, the court upheld denial of a variance, but overturned denial of a special permit, to a restaurant seeking additional parking space, emphasizing the lighter burden attached to special permit applications.

More recently, while acknowledging the different standards at the applications stage, the Court of Appeals has held that courts should defer to both special permit denials and variance denials by local boards, so long as the board had substantial evidence to support its denial. In Retail Prop. Trust v. Bd. of Zoning Appeals, 98 N.Y.2d 190, the court of upheld a special denial because the Board of Zoning Appeals properly exercised its discretion to credit the opposition's experts who disputed the applicant's claim that its development would have minimal traffic impact claim. On the same day, in Ifrah v. Utschig, 98 N.Y.2d 304, the court applied the same substantial evidence standard to a variance denial.

So long as substantial evidence supports the board's denial, courts will uphold that denial even if, as in Retail Property Trust, the record also includes evidence supporting the application's approval. In Matter of Franklin Sq. Donut Sys., LLC v. Wright, 63 A.D.2d 927, the Second Department upheld denial of an application to renew a special use permit for a drive-thru window when the record included conflicting testimony from local residents about the effect of the drive-thru window on traffic congestion.

Courts, however, will overturn a special permit denial when the record includes no evidence to support the denial For instance, in Matter of White Castle, Inc. v. Board of Zoning Appeals of Town of Hempstead, 93 A.D.3d 731, the court overturned the board's denial of a special permit for a waste enclosure because the record did not include any evidence to support the permit's denial. Id. at 162.

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