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Court Reverses Denial of Special Permit

The denial of a special permit was found to be arbitrary when unsupported by empirical evidence. In Matter of 7-Eleven, Inc. v. Incorporated Village of Mineola, the Appellate Division reversed the Village Board and the lower court and remanded the matter for the Board of Trustees to issue a special permit.

The Court noted that during the hearing process neighbors and some board members expressed concerns over traffic and the clientele of the 7-Eleven. However, as part of its application process 7-Eleven submitted expert reports that there would be no adverse impacts upon traffic and offered to set conditions regarding the timing of deliveries and size of trucks used for deliveries.

Noting that there was no contrary expert evidence produced by either the Village or the opponents of the proposal, the Court outlined the criteria that should be applied in considering a special permit application.

“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’…Here, the Board’s conclusion that the proposed convenience store would fail to comply with the applicable legislatively imposed conditions, and its concomitant determination to deny the petitioners’ application, was arbitrary and capricious. The claims of Board members and nearby property owners that the granting of the special use permit application would, among other things, exacerbate existing traffic congestion were unsupported by empirical data, and were contradicted by the expert opinions offered by the petitioners…”

-Steven Silverberg

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