Posted by: Patricia Salkin | April 21, 2009

Board May Not Rely on Draft Plan as Basis for Denial of Special Use Permit

The Town Board impermissibly denied an application for a special use permit to allow a single-family residence in a J2 Business District on the basis that a draft revitalization plan existed for the area since the plan had not been adopted and it was uncertain whether it would ever be adopted. In addition, the draft plan had not been provided to the petitioner.  Further, the Court found the Board’s reasons for the denial to be vague, conclusory and unsupported by factual data and empirical evidence presented at the hearing.  The Court noted that the petitioner presented evidence that a single-family residence was permitted in the business district, that their application met all of the relevant criteria for the issuance of a special use permit, and that their proposed use was consistent with existing development in the surrounding area and that it would have fewer impacts than an as-of-right commercial use in the district.

 

G & P Investing Company v. Foley, 2009 WL 943785 (N.Y.A.D. 2 Dept. 4/7/2009).

 

The opinion can be accessed at:  http://www.nycourts.gov/reporter/3dseries/2009/2009_02784.htm


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