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TOWN BOARD’S DENIAL OF A SPECIAL USE PERMIT ALLOWING THE BLASTING AND REMOVAL OF ROCK WAS NOT ARBITRARY OR CAPRICIOUS DESPITE THE TOWN’S IMPROPER CONSIDERATION OF INFORMATION GATHERED OUTSIDE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT PROCESS, THE TOWN’S RULING WAS SUPPORTED BY THE LOCAL LAW CRITERIA FOR ISSUANCE OF A SPECIAL USE PERMIT (THIRD DEPT).

The Third Department determined the town board did not act arbitrarily or capriciously when it denied a quarry’s (Troy Sand’s) application for a special use permit allowing the blasting and removal of rock. The court based its ruling on the local law which describes the criteria for issuance of a special use permit. The fact that the town improperly relied on information outside that gathered during the State Environmental Quality Review Act (SEQRA) process did not change the fact that the local law was properly applied and justified the denial:

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The first special use standard provides that “[t]he location and size of the use, the nature and intensity of the operations involved, the size of the site in relation to the use and the location of the site with respect to existing or future access shall be in harmony with the orderly development of the district” (Local Law No. 2 [1986] of Town of Nassau art VI [A] [1]). There is ample evidence in the SEQRA [State Environmental Quality Review Act] record that the proposed quarry will be a sizable operation, and the final EIS [environmental impact statement] supports the Town Board’s determination that the project would create a highly intensive industrial land use in an area where only one small commercial entity currently exists. …

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The second special use standard requires that “the nature and intensity of intended [*5]operations shall not discourage the appropriate development and use of adjacent land and buildings nor impair the value thereof” (Local Law No. 2 [1986] of Town of Nassau art VI [A] [2]). In finding that this standard was not satisfied, the Town Board relied on, among other things, a property value impact analysis, prepared by an expert whose qualifications have not been challenged.

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The fourth special use standard requires that “[t]he character and appearance of the proposed use . . . shall be in harmony with the character and appearance of the surrounding neighborhood” (Local Law No. 2 [1986] of Town of Nassau art VI [A] [4]). The Town Board rationally concluded that the proposed project would alter the essential character of the Town and the immediate neighborhood, which is comprised of residential lots and undeveloped forest land valued by residents and tourists alike for the tranquility and recreational opportunities that the rural landscape affords. …

“In sum, it was in no way irrational, on this record, to find that petitioners failed to carry their burden of showing that their contemplated use of the subject property conforms with the standards imposed”… . … We recognize that the Town Board relied on environmental information that was outside of the SEQRA record and made factual findings with no basis in the final EIS in evaluating most of the standards it applied…  However, inasmuch as the failure to meet even one applicable standard is a sufficient basis upon which to deny a special use permit application … , we cannot say that the Town Board’s determination was irrational … . Matter of Troy Sand & Gravel Co., Inc. v Fleming, 2017 NY Slip Op 09222, Third Dept 12-28-17

 

ZONING (TOWN BOARD’S DENIAL OF A SPECIAL USE PERMIT ALLOWING THE BLASTING AND REMOVAL OF ROCK WAS NOT ARBITRARY OR CAPRICIOUS, DESPITE THE TOWN’S IMPROPER CONSIDERATION OF INFORMATION GATHERED OUTSIDE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT PROCESS, THE TOWN’S RULING WAS SUPPORTED BY THE LOCAL LAW CRITERIA FOR ISSUANCE OF A SPECIAL USE PERMIT (THIRD DEPT))/ENVIRONMENTAL LAW (SPECIAL USE PERMIT, BLASTING OPERATION, TOWN BOARD’S DENIAL OF A SPECIAL USE PERMIT ALLOWING THE BLASTING AND REMOVAL OF ROCK WAS NOT ARBITRARY OR CAPRICIOUS, DESPITE THE TOWN’S IMPROPER CONSIDERATION OF INFORMATION GATHERED OUTSIDE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT PROCESS, THE TOWN’S RULING WAS SUPPORTED BY THE LOCAL LAW CRITERIA FOR ISSUANCE OF A SPECIAL USE PERMIT (THIRD DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (TOWN BOARD’S DENIAL OF A SPECIAL USE PERMIT ALLOWING THE BLASTING AND REMOVAL OF ROCK WAS NOT ARBITRARY OR CAPRICIOUS, DESPITE THE TOWN’S IMPROPER CONSIDERATION OF INFORMATION GATHERED OUTSIDE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT PROCESS, THE TOWN’S RULING WAS SUPPORTED BY THE LOCAL LAW CRITERIA FOR ISSUANCE OF A SPECIAL USE PERMIT (THIRD DEPT))/ENVIRONMENTAL IMPACT STATEMENT (EIS)  (TOWN BOARD’S DENIAL OF A SPECIAL USE PERMIT ALLOWING THE BLASTING AND REMOVAL OF ROCK WAS NOT ARBITRARY OR CAPRICIOUS, DESPITE THE TOWN’S IMPROPER CONSIDERATION OF INFORMATION GATHERED OUTSIDE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT PROCESS, THE TOWN’S RULING WAS SUPPORTED BY THE LOCAL LAW CRITERIA FOR ISSUANCE OF A SPECIAL USE PERMIT (THIRD DEPT))/SPECIAL USE PERMIT (ZONING, (TOWN BOARD’S DENIAL OF A SPECIAL USE PERMIT ALLOWING THE BLASTING AND REMOVAL OF ROCK WAS NOT ARBITRARY OR CAPRICIOUS, DESPITE THE TOWN’S IMPROPER CONSIDERATION OF INFORMATION GATHERED OUTSIDE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT PROCESS, THE TOWN’S RULING WAS SUPPORTED BY THE LOCAL LAW CRITERIA FOR ISSUANCE OF A SPECIAL USE PERMIT (THIRD DEPT))

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