Posted by: Patricia Salkin | August 4, 2017

NY Appellate Court Holds ZBA’s Denial of Fill Permit Application for Racetrack was not Illegal, Arbitrary or Capricious

Petitioners, Carnelian Farms, LLC, and Hunter’s Moon Farm, LLC, were the owner and lessee of an approximately 60–acre commercial horse boarding and training facility. The facility began operating pursuant to a special use permit issued by the Village of Muttontown in 1977. Petitioners brought this article 78 proceeding to review determination of village zoning board of appeals (ZBA), which upheld a condition imposed upon the granting of a building permit and denied the application for a fill permit to use excavated material to regrade the infield of racetrack. The Supreme Court, Nassau County, granted the petition.

On appeal, the court found that the ZBA properly considered the scope of the construction at the premises and the amount of fill that would be generated as a result. The ZBA considered the proposed use of the fill and the environmental effects of those proposals, and concluded that removal of the fill, rather than any of the alternatives proposed by the petitioners, was the most appropriate course of action. As such, the court held that the ZBA’s determination was rational and supported by the record, and that the Supreme Court should have accorded deference to the ZBA’s discretion instead of substituting its own judgment. The Supreme Court’s holding was therefore reversed.

Carnelian Farms, LLC v Leventhal, 151 A.D. 3d 844 (2 Dept. 6/14/2017)

 


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