To Show What You Know, Always Bring an Expert

Experts are important. Given the broad discretion that Zoning Boards are given in granting or denying special use permits, bringing an expert is a lot like bringing a gun to a knife fight: if your opponent has one and you don’t, you might not last long enough to regret it. To drive the point home, one need look no further than 7-Eleven, Inc. v. Incorporated Village of Mineola, where the failure of the concerned board and town members to provide an expert witness led to their concerns being dismissed.

The situation arose out of a proposal to build a 7-Eleven at 400 East Jericho Turnpike in Mineola. When the owners and 7-Eleven sought a special use permit, there was a contentious meeting in which Board members and residents expressed concerns about the proposal, citing the likely clientele, worsened traffic, and the impact on property values. To combat these concerns, 7-Eleven brought an expert witness to provide testimony addressing these concerns. Despite this testimony, the Board ruled against the special permit, and action challenged and later overturned as “arbitrary and capricious.” The court also took notice of the willingness by 7-Eleven to operate under certain restrictions regarding deliveries and the like. Thus even if the concerns of those opposed had merit, their failure to provide expert, informed testimony to that effect undermined their ability to attain their ends.  

Moral of the Story:  It never hurts to bring an expert, and odds are you’ll be glad you did

The case is 7-Eleven, Inc. v Incorporated Village of Mineola, 2015 WL 1915853 (N.Y. App. Div. 2015). The full decision can be found here

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