While a municipality does have authority pursuant to its police powers to impose conditions on certain uses, even pre-existing nonconforming uses, for purposes of protecting the public health, safety and welfare, in this case, the town zoning ordinance did not in this case does not regulate the operation of construction and demolition debris facilities it only regulates the location of certain facilities within zoning districts. Therefore, the Court concluded that the petitioners did not need a special use permit to continue processing and recycling operations at their facility.
Further, the Court concluded that the zoning board’s denial of the appeal from the administrative denial of the building permit application was arbitrary and capricious and not supported by substantial evidence in the record.
Serota Brown Court II, LLC v. Town of Hempstead, 2009 WL 1238229 (N.Y.A.D. 2d Dept. 5/5/2009).
The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2009/2009_03739.htm
