Posted by: Patricia Salkin | November 6, 2015

NY Appellate Court Affirms Annulment of ZBA’s Decision to Deny Special Permit to Concrete Aggregate Recycling Company

Petitioners/plaintiffs leased a 3.7 acre parcel of property in Cortlandt. In 2008, they applied to the Zoning Board of Appeals of the Town of Cortlandt for an interpretation that they were “specialty trade contractors” under the relevant zoning ordinance, and therefore permitted to engage in concrete aggregate recycling activities on their property. However, the Town Board of the Town of Cortlandt imposed a one-year moratorium on the processing of applications for site plan approval in connection with certain uses, including yards operated by specialty trade contractors. On July 20, 2010, the Town Board lifted the moratorium and amended the zoning and planning ordinance by adopting Local Law 12 of the Town of Cortlandt, which continued to allow specialty trade contractors to operate in certain zones, but required the contractors to obtain a special use permit. Although the petitioners’ counsel reiterated that the petitioners had no intention of engaging in any activity that required the processing of raw materials, and disputed the assertion that they had ever intended to process raw materials at the site, the ZBA denied the petitioners’ application and concluded that since they intended to process raw materials at the site they were not “specialty trade contractors” within the meaning of L.L. 12. The ZBA therefore found that the petitioners were ineligible to apply for the special permit now required of specialty trade contractors. In an Article 78 proceeding, the Supreme Court granted the petition which to annul the ZBA’s determination, and severed the declaratory judgment causes of action.

The ZBA properly determined that, under L.L. 12, a specialty trade contractor was required to apply for a special use permit in order to engage in certain activities on sites zoned for Highway Commercial uses, including concrete aggregate recycling activities, which previously did not require the issuance of a special use permit. However, the court found that the record was full of instances where the petitioners disputed, as nothing more than baseless rumor and suspicion, the claim that they intended to engage in activities other than concrete aggregate recycling on the site. Additionally, there was no evidence supporting the ZBA’s conclusion that the petitioners would engage in activities other than those which were explicitly approved or permitted as of right under the zoning and planning ordinance in force prior to July 20, 2010, or subject to the issuance of a special use permit under L.L. 12. Because of this, the court held that the Supreme Court properly concluded that the ZBA’s determination was irrational, and properly granted the petition to annul the ZBA’s April 23, 2012, determination.

Green Materials of Westchester v Town of Cortlandt, 2015 WL 6160910 (NYAD 2 Dept. 10/21/2015)

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