You are here: / / Denial of Special Use Permit Reversed As Arbitrary and Capricious/Difference...
,

Denial of Special Use Permit Reversed As Arbitrary and Capricious/Difference Between Special Use Permit and Use Variance Explained

The Second Department determined that the denial of 7-Eleven’s petition for a special exception (also referred to as a special use permit) for operation of a convenience store was arbitrary and capricious.  The court explained the difference between a special use permit and a use variance. A special use permit gives a property owner permission to use property in a way that is consistent with the zoning ordinance but not necessarily allowed as of right. A use variance gives the owner permission to use the property in a manner inconsistent with the zoning ordinance.  The proof burden is much lighter for a special use permit, as opposed to a use variance.  The proponent of a special use permit need only show compliance with legislatively imposed conditions, while the proponent of a use variance must show undue hardship in complying with the ordinance. Here no evidence was presented to support the denial of the special use permit:

A special exception, commonly known as a special use permit, “gives [a property owner] permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right” … . By contrast, a use variance gives a property owner permission to use the property in a manner inconsistent with a local zoning ordinance. “The significance of this distinction is that the inclusion of the permitted use in the ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood” … . Accordingly, “the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a [use] variance, the former only being required to show compliance with any legislatively imposed conditions on an otherwise permitted use, while the latter must show an undue hardship in complying with the ordinance” … . Matter of 7-Eleven, Inc. v Incorporated Vil. of Mineola, 2015 NY Slip Op 03544, 2nd Dept 4-29-15

 

You might also like
DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
AFTER WALKING OVER A TRAP DOOR, PLAINTIFF STEPPED BACK AND FELL THROUGH THE OPEN DOOR; DEFENDANT OUT-OF-POSSESSION LANDLORD DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION (SECOND DEPT). ​
No Demonstrated Connection Between Stair-Related Code Violations and Injury
Question of Fact Whether Out of Possession Landlord, Based on the Terms of the Lease, Had a Duty to Keep the Premises Safe (Labor Law 200)
Unexcused Failure to Comply with Discovery Orders Warranted Striking of the Pleadings
SUPREME COURT PROPERLY CONSIDERED A SUCCESSIVE AND LATE MOTION FOR SUMMARY JUDGMENT, CRITERIA EXPLAINED; DEFENDANT DEMONSTRATED PLAINTIFF WAS NOT A THIRD-PARTY BENEFICIARY OF THE CONTRACT AT ISSUE, CRITERIA EXPLAINED (SECOND DEPT).
SUPREME COURT SHOULD NOT HAVE DISMISSED THIS DENTAL MALPRACTICE ACTION ON THE GROUND THE PLAINTIFFS’ EXPERT WAS NOT QUALIFIED TO RENDER AN OPINION; ANY WEAKNESSES IN THE EXPERT’S AFFIDAVIT WENT TO ITS WEIGHT NOT ITS ADMISSIBILITY (SECOND DEPT).
THE REAL ESTATE PURCHASE CONTRACT DID NOT INCLUDE THE CLOSING DATE OR THE MORTGAGE TERMS; THE CONTRACT WAS THEREFORE UNENFORCEABLE PURSUANT TO THE STATUTE OF FRAUDS (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Court Has Discretion to Grant a Recess to Allow a Conference Between a Lawyer... No Appeal Lies from a Vacated Order