Second Department Holds Denial of Fill Permit Application for Racetrack Not Arbitrary or Capricious

Petitioners were the owner and lessee of an approximately 60–acre commercial horse boarding and training facility. The facility began operating pursuant to a special use permit issued by the Village of Muttontown (“Village”) in 1977.  Petitioners planned to renovate and upgrade the property, including by adding an indoor riding area.  After a six-year review process, the Village Board of Trustees approved the application.  However, the building permit issued by the Village Building Inspector included a condition that all excavated material be removed upon generation, and could not be stored or spread on the property.  Petitioners appealed to the Village Zoning Board of Appeals (“ZBA”), which upheld the condition. Petitioners then brought the instant Article 78 proceeding to review the ZBA decision. The Supreme Court, Nassau County, granted the petition, and the municipal parties appealed.

On appeal, the Second Department found that the ZBA decision was rational and supported by the record, and therefore properly shown deference by the lower court.  In its decision, the ZBA properly considered the scope of the construction at the premises and the amount of fill that would result, as well as the proposed use of said fill and the environmental effects therefrom.  Based on those factors, the ZBA rationally concluded that removal of the fill, rather than Petitioner’s alternatives, was the most appropriate course of action.  As such, the Court held that the Supreme Court erred by failing to accord deference to the ZBA’s discretion instead of substituting its own judgment. The Supreme Court’s holding was therefore reversed.

The case was Carnelian Farms, LLC v Leventhal, 151 A.D. 3d 844 (2 Dep’t 2017).

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