Posted by: Patricia Salkin | June 12, 2009

Planning Board Properly Granted Waivers to Wal-Mart and Zoning Board Properly Granted Variances

Where the Town Code provided, with respect to special uses, that “[a]ny of the following uses may be permitted upon obtaining a special use permit, provided such complies with all applicable dimensional and other requirements of this chapter…,” the Court said that this means that dimensional requirements could be satisfied after obtaining a variance, noting that N.Y. Town Law sec. 274-b (3) expressly provides for the issuance of a special use permit in conjunction with an area variance. Further, the Court said that he Planning Board, in their discretion, properly granted lot coverage waivers for the requirements in the Commercial Corridor Overlay District. The Planning Board has authority under the Town Code to grant waivers from the Town’s site development standards where an applicant can demonstrate “extreme difficulties” would be encountered with strict compliance. The Court found that the “extreme difficulties” standard is “capable of a reasonable application,” it sufficiently limits and defines that planning board’s discretion, and that it is not an impermissible delegation of legislative power. Additionally, the appeals court agreed with the court below that the Planning Board took a “rational, measured approach to the reality of the project” and that the record showed that the Board’s determination had a rational basis. Further, the Court said that since Wal-Mart obtained the dimensional waivers, they did not need to seek additional variances for that purpose. In addition, the Court said that Town Law 274-a(3) dealing with variances, does not preempt the waiver provisions in the local Code. Lastly, the Court agreed that the variances sought were necessary since strict compliance with the Code’s area requirements was impractical based upon the proximity of the project to existing retail and commercial businesses, and that the granting of the variances by the Zoning Board of Appeals did not “invade the zoning province of the legislative body.”

Lockport Smart Growth, Inc. v. Town of Lockport, 2009 WL 1565197 (N.Y.A.D. 4 Dept. 6/5/2009).

The opinion can be accessed at:

For an article discussing ways to regulate formula-based businesses, click here.

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