Posted by: Patricia Salkin | June 20, 2009

Denial of Dunkin’ Donuts Request to Renew Special Use Permit for Drive-Thru Window Upheld

In 1986 the zoning board of appeals granted the petitioner a temporary special exception permit for five years to operate a drive-thru window subject to a number of conditions, including a condition that the drive-thru was to be maintained so as not to permit vehicle back-up onto nearby neighborhood roads. The special permit was subsequently renewed every five years, with the last renewal granted in 2001.  In 2004, the petitioner applied to the Building Department to maintain the drive-thru as of right, plus add a second drive-thru and menu boards.  Following a denial of these requests, the petitioner applied to the zoning board for special exception permits and it appealed the denials by the Building Department. After a hearing the Board denied the appeals and the applications for the special exception permits. The trial court upheld the denials finding that the Board’s decision was rational and supported by evidence in the record.                             

The appeals court agreed.  The court noted that although the burden of proof is lighter for an applicant seeking a special permit as opposed to a variance, compliance with local standards must still be met. The Court found that the Board properly considered the standards set forth in the zoning ordinance, and that the Board appropriately determined that the proposed use prevented “the orderly and reasonable use of adjacent properties” and that its location adversely affected “the safety, health, welfare, comfort, convenience or order of the town.” 

Franklin Square Donut System, LLC v. Wright, 2009 WL 1695727 (N.Y.A.D. 6/16/2009). 

The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2009/2009_05127.htm

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