| Matter of Emrey Props., Inc. v Baranello |
| 2009 NY Slip Op 03171 [61 AD3d 866] |
| April 21, 2009 |
| Appellate Division, Second Department |
| In the Matter of Emrey Properties, Inc.,Appellant, v Patricia A. Baranello et al., Respondents. |
—[*1] Sinnreich & Kosakoff, LLP, Central Islip, N.Y. (Vincent J. Messina, Jr., and Sandra G.Torget of counsel), for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Town of OysterBay Zoning Board of Appeals dated February 15, 2007, which, after a hearing, denied thepetitioner's application for a special use permit, the petitioner appeals from a judgment of theSupreme Court, Nassau County (Adams, J.), entered October 23, 2007, which denied the petitionand, in effect, dismissed the proceeding.
Ordered that the judgment is reversed, on the law and the facts, with costs, the petition isgranted, the determination of the Town of Oyster Bay Zoning Board of Appeals is annulled, andthe matter is remitted to the Town of Oyster Bay Town Board to issue an appropriate buildingpermit to the petitioner.
The petitioner, Emrey Properties, Inc. (hereinafter Emrey), owns property located inMassapequa, upon which is located a gas station and an auto repair shop. In 1990 the priorowner of the property, BMV Enterprises, Inc. (hereinafter BMV), applied to the Town of OysterBay Town Board (hereinafter Town Board) for site plan approval and a special use permit toconstruct a new gas station, as well as a convenience store. On March 12, 1991, following a siteplan review, the Town Board issued a resolution setting forth, inter alia, that the proposedconstruction would not have a significant impact on the [*2]environment. The Town Board further found, based on various tripgeneration estimates in the Transportation and Traffic Engineering Handbook, that the proposedproject was "not expected to result in a significant adverse impact on traffic levels utilizing thelocal roadways." In February 1993 the Town Board granted BMV a special use permit forconstruction of a new gas station and convenience store on the property, subject to certainvoluntary covenants and restrictions. However, BMV never commenced any new constructionon the property.
On June 5, 2003, Emrey purchased the property and, less than one month later, beganconverting the auto repair shop to a convenience store. On July 10, 2003, the Town of OysterBay Department of Planning and Development (hereinafter the Town) issued a stop-work order.Thereafter, the Town denied Emrey's application for a special use permit. Emrey appealed thedenial to the Zoning Board of Appeals of the Town of Oyster Bay (hereinafter ZBA). Followinga public hearing, the ZBA denied the application based upon, inter alia, its conclusion that theproposed convenience store, although it would be a conforming use, would constitute animpermissible intensification of the property. Emrey then commenced this CPLR article 78proceeding to annul the ZBA's determination, arguing, among other things, that thedetermination was arbitrary, capricious, and unsupported by the evidence in the record. TheSupreme Court denied the petition and, in effect, dismissed the petition. We reverse.
In reviewing the denial of a special use permit, this Court's function is to ensure that thediscretion exercised by the local body was not arbitrary and capricious (Matter of Halperin v City of NewRochelle, 24 AD3d 768, 770 [2005]; see Matter of Rendely v Town of Huntington, 44 AD3d 864, 865[2007]). "[A] special use permit does not involve a use of property forbidden by the zoningordinance but instead constitutes a recognition of a use which the ordinance permits under statedconditions" (Matter of Texaco Ref. & Mktg. v Valente, 174 AD2d 674, 675 [1991];see Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30NY2d 238, 243 [1972]).
Here, since the proposed convenience store would constitute a conforming use under thecurrent zoning of the area where the subject property is located, there had to be reasonablegrounds for the denial of the petitioner's application (see Matter of Carrol's Dev. Corp. vGibson, 53 NY2d 813 [1981]; see also Matter of J.P.M. Props. v Town of OysterBay, 204 AD2d 722 [1994]; Matter of Framike Realty Corp. v Hinck, 220 AD2d501 [1995]; Matter of Texaco Ref. & Mktg. v Valente, 174 AD2d 674 [1991]). However,while the ZBA concluded that a convenience store would intensify use of the subject property,there was no evidence adduced at the hearing to support such a conclusion. Indeed, the Townoffered no proof to contradict the prior "no adverse impact" determination which it had reachedwhen it issued the special use permit in February 1993 to BMV, the petitioner's predecessor,allowing for construction of a new gas station and convenience store. Moreover, the evidencedoes not establish that the proposed use would have a greater impact upon traffic than wouldother unconditionally permitted uses (cf. Matter of Serota v Town Bd. of Town of OysterBay, 198 AD2d 507 [1993]).
In light of the foregoing, we conclude that the ZBA's denial of the petitioner's application fora special use permit was arbitrary and capricious, and must be annulled (see Matter ofMarkowitz v Town Bd. of Town of Oyster Bay, 200 AD2d 673, 675 [1994]).
In light of our determination, we need not reach the petitioner's remaining contentions.Skelos, J.P., Fisher, Santucci and Balkin, JJ., concur.