Posted by: Patricia Salkin | September 21, 2014

NY Appellate Court Upholds Denial of Special Use Permit for Day Care Facility Expansion

The Village Board of Trustees determined that the proposed expansion of a day care facility into vacant retail space would “result in a dangerous traffic situation, an over intensification of land use with respect to available parking, and a hazard with respect to the provision of emergency services.” As a result, the request for a special use permit was denied and the petitioner appealed.

Noting that the burden of proof for a special use permit is lighter than that required for a variance, since the special use permit already contemplates a permitted use, and that the denial of the special use permit must be supported by evidence in the record and not solely community opposition, the appellate court stated that even where support for a denial exists, courts must give deference to the authorized board and may not substitute their own judgment. Further, the Court noted that it is appropriate for board members to base their decision upon, among other things, their knowledge of the community.

Apparently, the Board did not comply with the time limitations in Village Law 7-725-b(6) for the decision on the application, but the Court said that such action does not give rise to an annulment of the decision since the Board did issue one. If the petitioner wanted to address this issue, the proper route should have been a special proceeding to compel the Board to issue a determination on the application.

Smyles v Board of Trustees of Incorporated Village of Mineola, 2014 WL 4210181 (NYAD 2 Dept. 8/27/2014)

The opinion can be accessed at:

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