Posted by: Patricia Salkin | April 10, 2016

NY Appellate Court Upholds Denial of Application for a Use Variance to Operate a Sand and Gravel Mine

Petitioner entered into a lease with the landowner at a time when mining was a permitted use provided that a special use permit was obtained. However, before a special use permit was issued to petitioner, the West Bloomfield Town Board passed a resolution adopting a moratorium on sand and gravel mining operations in the Town and ultimately adopted a local law that prohibited mining in the R–1 Low Density district where the subject property was located. After considering the information provided by petitioner, as well as that provided by an engineer retained by the ZBA to review the application, the ZBA determined that petitioner failed to establish three of the four factors constituting the unnecessary hardship required for the issuance of a use variance. Petitioner commenced this CPLR article 78 proceeding to annul the determination of respondent Town of West Bloomfield Zoning Board of Appeals, which denied its application for a use variance to operate a sand and gravel mine.

Here, although the petitioner provided expert testimony with respect to those factors, it was the job of the ZBA as administrative factfinder to resolve issues of credibility. Furthermore, the ZBA properly applied the factors constituting unnecessary hardship set forth in Town Law § 267–b (2)(b). Thus, there was insufficient evidence that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure. The judgment upholding the ZBA’s denial of a use variance was therefore affirmed.

Elam Sand & Gravel Corp. v Town of West Bloomingfield Zoning Board of Appeals, 2016 WL 1164394 (NYAD 4 Dept. 2016)

 


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