Appellate Division Affirms Annulment of ZBA’s Decision to Deny Special Permit to Concrete Aggregate Recycling Company

Petitioners-plaintiffs leased property in the Town of Cortlandt (“Town”).  In 2008, they applied to the Town’s Zoning Board of Appeals (“ZBA”) for a ruling that they were “specialty trade contractors” under the zoning ordinance, and thus permitted to engage in concrete aggregate recycling activities. However, the Town Board imposed a one-year moratorium on processing applications for site plan approval related to certain uses, including specialty trade contractors. On July 20, 2010, the Town Board lifted the moratorium and adopted Local Law 12, amending the zoning and planning ordinance to require that specialty trade contractors obtain a special use permit.  Petitioners reiterated that they had no plans to engage in activity requiring the processing of raw materials, and disputed that they ever intended to process raw materials on-site.  Even so, the ZBA denied Petitioners' application and concluded that since they intended to process raw materials at the site they were not “specialty trade contractors.” The ZBA thus found Petitioners were ineligible for the special permit now required. Petitioners brought an Article 78 proceeding, and the Supreme Court granted the petition to annul the ZBA's determination.

On appeal, the Appellate Division found that the ZBA properly determined that Labor Law 12 required a specialty trade contractor to apply for a special use permit to engage in certain activities on sites zoned for Highway Commercial uses.  This included concrete aggregate recycling activities, which previously did not require a special use permit. However, the Court found the record was full of instances where Petitioners disputed the claim that they intended to engage in activities other than concrete aggregate recycling on the site as nothing more than baseless rumor and suspicion. In addition, there was no evidence for the ZBA's conclusion that Petitioners would engage in activities other than those explicitly approved or permitted as of right under ordinance in force prior to July 20, 2010, or subject to the issuance of a special use permit under Labor Law 12.  Accordingly, the Court held that the Supreme Court had properly concluded that the ZBA's determination was irrational and granted the petition to annul the ZBA's determination.

The case was Green Materials of Westchester v. Town of Cortlandt, 132 A.D.3d 868 (2d Dep’t 2015).

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