Posted by: Patricia Salkin | July 7, 2017

NY Sup. Court Overturns Board’s Denial of Site Plan based on Traffic Study and Community Opposition Concluding Denial was Arbitrary and Capricious

Editor’s note: Thank you to the Amato Law Group, PLLC for this contribution to the blog.

In July, 2012, 7-Eleven filed a complete site plan application (“Application”) to the Town of Babylon (“Town”) Planning Board for a proposed store in West Babylon, New York.  In response to Town comments, 7-Eleven made subsequent revisions to the site plan, incorporating numerous suggestions and comments by the Town departments.  Further, subsequent expert submissions addressed the Town’s concerns.  In particular, in November 2013, the Town Traffic Division issued a memo noting that all prior concerns and objections were met.  In December, 2013, a public hearing was held before the Planning Board.  During the public hearing, community members, including a nearby 7-Eleven store owner, voiced opposition to the store.  The Planning Board left open the record for the submission of a traffic study by 7-Eleven, as well as further public comment.  After this public hearing, the Town’s Traffic Division issued a new memorandum setting forth objections to the Application, in particular regarding the number of on-site customer truck parking spaces and the claim that the delivery zone could not accommodate a tractor-trailer.   This memorandum set off a two-year, back-and-forth between applicant and the Town, wherein 7-Eleven attempted to address each and every comment from the Traffic Division.  When pushed for an “up or down” vote on the Application, the Planning Board finally voted to deny it in August 2016, which both 7-Eleven and the property owner appealed.

The Court’s decision relied, in part, on 7-Eleven’s argument that this case presented similar issues to 7-Eleven’s Article 78 proceeding against the Village of Mineola for its denial of a special use permit.  The Town’s Planning Board in this case, and the Board of Trustees in the Mineola case, both denied the applications, in part, because of perceived traffic impacts resulting from tractor-trailer deliveries and perceived noise problems from overnight deliveries, even though 7-Eleven supported each of those applications with an affidavit representing that delivery times would be restricted, and that only box trucks would deliver to the stores.  Both this Court and the Appellate Division in the Mineola case rejected those bases of the boards’ denials of the applications.  As in the Mineola matter, this court concluded that it is arbitrary and capricious for a municipality to deny a 7-Eleven store application on the grounds of tractor-trailer delivery concerns or overnight delivery concerns where 7-Eleven had filed an affidavit stating that those two events will not occur.

In addition to the foregoing argument, the Court was, overall, persuaded that the Planning Board’s decision was irrational, arbitrary and capricious in light of the “empirical data” submitted during the Application process “evidencing that the proposed use would not carry deleterious impact or effects on the adjacent residential neighborhood as far as increased traffic or public safety.”   According to the Court, the Planning Board could not point to any contradictory “objective, factual or scientific support” to credit the concerns of the community opposition.  In sum, the Court held, “Even after giving respondents’ due deference in its expertise in local planning matters and site plan review, this Court finds that respondents did not attempt to counter petitioners’ scientific and factual evidence, but instead rather relied upon conclusory and speculative concerns to justify denial of petitioners’ application.”   Therefore, the decision reaffirms the principles that municipalities may not:  (i) base their decisions on the community’s political pressure or its unsubstantiated objections (e.g., crime, traffic); and (ii) ignore traffic and engineering studies, or an affidavit of the applicant, in favor of its own opinions.

As an initial matter, the Court also undertook a ripeness analysis, rejecting the Town’s claim that the applicant was required to proceed with variance approval from the zoning board, even though the planning board had issued a denial.  As the Court stated:  “Petitioners sought both site plan review and for a permit to commence demolition and new construction on their intended site.  Respondents granted neither application, with the practical import of each denial being that petitioners cannot move their project forward.  Thus, to conclude as respondents seek that petitioners have not yet been injured, or rather, that respondents’ determination is not yet in final form contorts logic.”

7-Eleven and Louhal Properties v. Town of Babylon, Index No.: 09290/2016 (Sup. Ct. Suffolk County, 7/7/2017).

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