Petitioner filed an application for a special use permit to expand a day care facility into nearby vacant retail space.  After a hearing, the Village Board of Trustees denied petitioner’s application for a special use permit, finding that the proposed expansion of the 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.” Petitioner commenced a CPLR Article 78 proceeding to challenge the determination.  The Supreme Court dismissed the petition, and Petitioner appealed.

The Appellate Division, Second Department began by noting that the burden of proof for a special use permit is lighter than that for a variance, as the special use permit seeks permission to use a property “in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right.”  Denial of a special use permit must be supported by evidence in the record, and cannot be based solely on community opposition. Furthermore, courts must give deference to the authorized board.  Where the record supports a denial, the court may not substitute its own judgment merely because the record could also support a contrary decision. Finally, the Court noted that it is appropriate for board members to base their decision upon, among other things, their knowledge of the community.  Reviewing the record before the Board, the Court ruled that the decision was supported by the record, and therefore was not arbitrary and capricious.

The Court also addressed allegations that the Board failed to comply with the time limitations to decide on the application under Village Law 7-725-b(6).  The Court said that if the time limit had passed, the Petitioner’s remedy would have been to commence a special proceeding to compel the Board to issue a determination on the application.  Annulment of the Board’s decision is not warranted, and given that the Board did issue a determination, the Court found Petitioner’s claims to be academic.

The case was Smyles v. Board of Trustees of Incorporated Village of Mineola, 120 A.D.3d 822 (2d Dep’t 2014).