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Court Upholds Denial of Special Permit

The Appellate Division, in a somewhat rare instance, upheld the denial of a special permit to expand an existing day care center. In Matter of Smyles v. Board of Trustees of Incorporated Village of Mineola, the Court found there was sufficient expert evidence that the expansion of the facility would have an adverse impact on traffic, parking and available emergency services.

“A denial of a special use permit must be supported by evidence in the record and may not be based solely upon community objection (see Matter of Green 2009, Inc. v Weiss, 114 AD3d 788; Matter of White Castle Sys., Inc. v Board of Zoning Appeals of Town of Hempstead, 93 AD3d 731). However, where evidence supporting the denial exists, deference must be given to the discretion of the authorized board, and a court may not substitute its own judgment for that of the authorized board, even if a contrary determination is supported by the record…
Here, evidence in the record, including testimony by experts in traffic and real estate and by neighboring property owners, supports the findings of the Board of Trustees of the Incorporated Village of Mineola (hereinafter the Board) that the proposed expansion of the subject day care facility into vacant retail space would result in a dangerous traffic situation, an over-intensification of land use with respect to available parking, and a hazard with respect to the provision of emergency services. Contrary to the petitioners’ contention, the Board was entitled to base its decision upon, among other things, its members’ personal knowledge and familiarity with the community (see Matter of Russia House at Kings Point, Inc. v Zoning Bd. of Appeals of Vil. of Kings Point, 67 AD3d 1019; Matter of Thirty W. Park Corp. v Zoning Bd. of Appeals of City of Long Beach, 43 AD3d 1068). Accordingly, the Board’s determination to deny a special use permit on the ground that it would not be in the best interests of the health, safety, and welfare of the community was supported by the record, and was not arbitrary and capricious.”

-Steven Silverberg

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