Posted by: Patricia Salkin | November 29, 2018

NY Appellate Court Holds Special Use Permit to Operate a Gasoline Service Station was Improperly Denied

This post was authored by Matthew Loeser, Esq.

In this case, a two-acre parcel of land, upon which was a used auto sales dealership, an automotive repair shop, and an area for the storage of cars and boats, was located in a business district in which gasoline service stations were a permitted use with a special permit. In 2013, the petitioner QuickChek Corporation applied to the Town of Islip Planning Board and the Town Board of the Town of Islip for special permits to use the subject property as a convenience market, a minor restaurant, and a gasoline service station. The Town Board denied the application for a special permit to operate a gasoline service station, and the petitioners commenced this Article 78 proceeding. The Supreme Court granted the petition, annulled the Town Board’s determination, and remitted the matter to the Town Board for the issuance of the requested special use permit.

On appeal, the court found that the record reflected that with regard to the alleged increased volume of traffic, there was no showing that the proposed use of a gasoline service station would have a greater impact on traffic than would other uses unconditionally permitted. Additionally, while there was evidence that traffic would be increased by 3%, there was no evidence indicating that the proposed use would have any greater impact than would other permitted uses. Thus, the court found the alleged increase in traffic volume was an improper ground for the denial of the special permit. Accordingly, the material findings of the Town Board were not supported by substantial evidence. The court therefore upheld the Supreme Court’s determination to grant the petition, annul the Town Board’s determination, and remit the matter to the Town Board for the issuance of the requested special permit.

Quickchek Corporation v Town of Islip, 2018 WL 6187131 (NYAD 2 Dept. 11/28/2018)

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