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DENIAL OF SPECIAL USE PERMIT FOR A GAS STATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT

The Second Department determined the denial of a special use permit for the construction of a gas station was not supported by substantial evidence:

The subject two-acre parcel of land, upon which is located a used auto sales dealership, an automotive repair shop, and an area for the storage of cars and boats, is located in a business district in which gasoline service stations are a permitted use with a special permit. * * *

Unlike a variance, a special permit does not entail a use of the property forbidden by the zoning ordinance but, instead, constitutes a recognition of a use which the ordinance permits under stated conditions … . Thus, the burden of proof on an applicant seeking a special permit is lighter than that required for a hardship variance… . In reviewing a town board’s determination on special permit applications, we are “limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion,” and we “consider substantial evidence only to determine whether the record contains sufficient evidence to support the rationality of the [b]oard’s determination” … . “A denial of a special . . . permit must be supported by evidence in the record and may not be based solely upon community objection”… .

Here, the material findings of the Town Board were not supported by substantial evidence. 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 … . 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 alleged increase in traffic volume was an improper ground for the denial of the special permit. Matter of QuickChek Corp. v Town of Islip, 2018 NY Slip Op 08136, Second Dept 11-28-18

ZONING (DENIAL OF SPECIAL USE PERMIT FOR A GAS STATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT))/LAND USE (DENIAL OF SPECIAL USE PERMIT FOR A GAS STATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT))/SPECIAL USE PERMITS (LAND USE, DENIAL OF SPECIAL USE PERMIT FOR A GAS STATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT))/ADMINISTRATIVE LAW (LAND USE, DENIAL OF SPECIAL USE PERMIT FOR A GAS STATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT))/EVIDENCE (ADMINISTRATIVE LAW, LAND USE, DENIAL OF SPECIAL USE PERMIT FOR A GAS STATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT))/TRAFFIC, INCREASED (ADMINISTRATIVE LAW, LAND USE, DENIAL OF SPECIAL USE PERMIT FOR A GAS STATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT))

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