Posted by: Patricia Salkin | May 27, 2012

NY Appellate Court Deems Zoning Board Decision to Deny Special Exception Permit Arbitrary and Capricious

Kabro Associates, LLC applied for a special exception permit with the Town of Islip Zoning Board of Appeals (ZBA) to extend its off-street parking lot and extend its floor space into its rear lot pursuant to conditions imposed by the Town of Islip Planning Board when they attempted to obtain a special permit for a restaurant on the property. The front portion of the lot owned by Kabro Associates was zoned as a Business 1 District where the rear portion of the lot was zoned as a Residence A District. At the hearing to determine the special exception permit, Kabro Associates presented expert testimony showing that the proposed changes would not negatively impact surrounding properties or make traffic conditions worse. There was a general objection from residents in the neighborhood to the proposed changes. The ZBA denied the permit.

The trial court denied the petition and the appellate court reversed. The Court determined the ZBA’s conclusion “that the proposed development would fail to comply with the applicable legislatively imposed conditions, and its concomitant determination to deny the petitioner’s application, was arbitrary and capricious.” Zoning board determinations are given great deference but can be overturned based on a finding that the action was illegal, arbitrary and capricious, or an abuse of discretion. “In applying the arbitrary and capricious standard, a court inquires whether the determination under review had a rational basis. Under this standard, a determination should not be disturbed unless the record shoes that the agency’s action was arbitrary, unreasonable, irrational or indicative of bad faith.” Citing Matter of Rendely v. Town of Huntington, 44 A.D.3d 864, 865. “A determination will not be deemed rational if it rests entirely on subjective considerations, such as general community opposition, and lacks an objective factual basis.” citing Matter of Cacsire v. City of White Plains Zoning Bd. of Appeals, 87 A.D.3d 1135, 1137. “An owner seeking a special exception permit is only required to show compliance with any legislatively imposed conditions on an otherwise permitted use.” See, Matter of Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 98 N.Y.2d at 195.

The concern of neighboring property owners was not supported by empirical data, and was “contradicted by the expert testimony.” The petitioner was also supported by the Town of Islip Department of Planning and Development. Thus, the determination by the ZBA lacked “rational basis,” and the Court remitted the matter to the ZBA to issue the special exception permit and to impose any conditions or restrictions appropriate.

Karbo Associates, LLC v. Town of Islip Zoning Board of Appeals, 2012 WL 1699940 (N.Y.A.D. 2 Dept)

The opinion can be accessed at:

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