Posted by: Patricia Salkin | May 21, 2015

NY Appellate Court Finds Denial of the Petitioners’ Special Use Permit Application was Arbitrary and Capricious

The petitioners SCJB 400, LLC, owner of 400 East Jericho Turnpike in Mineola, and 7–Eleven, requested a special use permit to construct a convenience store on the premises. At a public hearing conducted by the Incorporated Village of Mineola Board of Trustees, experts retained by the petitioners asserted that a convenience store on the premises would not adversely affect the surrounding properties by exacerbating traffic conditions or decreasing property values. Various Board members and owners of nearby properties opposed the special use permit application, primarily based on their belief that the convenience store’s clientele would be unsavory, and that the presence of the proposed store would exacerbate existing traffic congestion. However, even though no expert evidence was provided in opposition to the petitioners’ expert evidence, the Board denied the petitioners’ application, citing concerns about traffic and parking. The petitioners then appealed from a judgment of the Supreme Court, Nassau County, which denied the petition and dismissed the article 78 proceeding.

The court found that the claims of Board members and nearby property owners that the granting of the special use permit application would exacerbate existing traffic congestion were unsupported by empirical data, and were contradicted by the expert opinions offered by the petitioners. Furthermore, the Board did not take into account 7–Eleven’s expressed willingness to abide by certain restrictions on the size of delivery trucks and the timing of deliveries. The court therefore reversed, finding that the Board’s denial of the petitioners’ special use permit application was not supported by the evidence in the record, and the denial was arbitrary and capricious.

7-Eleven, Inc. v Incorporated Village of Mineola, 2015 WL 1915853 (NYAD 2 Dept. 4/29/2015)

The opinion can be accessed at:



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