Land Use Training Program
for Local Officials
Tutorial VI - Special Use Permits & Permit Conditions
New York Municipal Insurance
Reciprocal
land use Law Center - Pace University School of
Law
New York Planning Federation
TABLE OF CONTENTS
INTRODUCTION
*SPECIAL USE PERMIT AND VARIANCE DISTINGUISHED
*SPECIAL USE PERMITS AND LOCAL ADMINISTRATION
*Legislative Role
*ADMINISTRATION BY OTHER BODIES
*Basing Decisions on Standards in the Regulations
*Conditions
*LIMITATIONS ON THE IMPOSITION OF CONDITIONS
*Administration and Procedure
*The Application and its Review
*County/Regional Planning Agency
*Environmental Review
*Summary
*REFERENCES
*Quiz
*Special Use Permit Provision Could Have Saved Town $144,000
In Triglia v. Town of Cortlandt (1998), the applicant to the Cortlandt Town Board wished to develop multi-family housing on his property, which had previously been zoned for such a development. According to new plans that the town was attempting to enact, the property would be rezoned in a way that would prohibit multi-family housing. Acknowledging the fact that such housing was needed in the town, the Board planned to create an "overlay district" which would allow plaintiff's development under special permit provisions. In fact, the new zoning ordinance was adopted without the overlay district.
The Westchester County Supreme Court held that the ordinance was unconstitutional because the town acted either "for an exclusionary purpose or its actions had an exclusionary effect." The ordinance did not take into account the housing needs of the community or the region. The court found that lower income housing was needed in the area and because the ordinance eliminated almost all opportunity to build such housing in the town it was considered exclusionary and, therefore, unconstitutional.
The Court granted the landowner's motion for summary judgment on the issue of constitutionality and gave the Town four months to amend the ordinance. Plaintiff's request for damages resulted in a $44,000 award for counsel fees and a $100,000 award for costs of delay.
INTRODUCTION
Special use permits are referred to by a variety of terms in local practice and court decisions. These terms include special exception use, special permit, special exception permit, conditional use permits, and special exceptions. The statutory term is special use permit.
New York statutes define a special use permit as the authorization of a particular land use that is permitted in a zoning law subject to specific requirements that are imposed to assure that the proposed use is in harmony with the immediate neighborhood and will not adversely affect surrounding properties. An example is a home office or home occupation in a single-family residential neighborhood. A law, for example, might permit single-family homes as-of-right in a residential district and home occupations upon the issuance of a special use permit. This means that the legislature has concluded that religious institutions are harmonious uses in a residential district, but that conditions may need to be imposed on them to ensure that the size, layout, parking, and lighting do not adversely affect the residential neighborhood.
The local legislature is empowered to authorize the planning board or other local administrative body to grant special use permits as set forth in the local zoning law. Some legislatures have delegated this authority to the planning board, some to the zoning board of appeals, and some have retained the authority to issue special use permits themselves.
As an example, the Town of Patterson's Zoning Law, Article
XVI (Special Permits for Residence Districts), Section 154-75, provides standards for the
Zoning Board of Appeals to grant a special use permit for a religious institution.
According to the law, the project may be permitted provided that: (A) The lot size and setbacks conform to all the requirements of the
district in which it is located. (B) The lot frontage
shall conform to the requirements of the district in which it is located. (C) Said
frontage and access to lot shall be on a state or county road, and (D) The maximum lot
coverage shall be ten percent.
In the Town of Patterson the zoning law sets forth which board has the authority regarding special use permits in Article XIV, Section 154-70. "A special use permit may be granted by the Zoning Board of Appeals." The law lists a variety of uses for which a special use permit may be awarded, some of which are: undertaker establishments, clubs, religious institutions, schools, trailer parks, hospitals, shopping centers, hotels and motels, and industrial parks.
The Zoning Board of Appeals in the Town of Patterson is limited in its ability to grant special use permits, however, by standards contained in the zoning law. Some of the limitations are: (1) that the location, size, and character of the use will be in harmony with and conform to the appropriate and orderly general development of the town; (2) that the Board's decision to grant a special use permit must be in accordance with the comprehensive plan; (3) that the Board's decision must be made with reasonable consideration of the character of the district; (4) the Board must give weight to the fact that the proposed special use will not depreciate the value of the property in the neighborhood; and (5) that the use will not hinder or discourage the appropriate development and use of the property in the neighborhood. These guidelines allow special uses without disrupting the character of the neighborhood in which they are established. The board would use them when reviewing an application for a special use permit for a religious institution in addition to the specific standards contained in section 154 - 75 above.
Local legislatures achieve a degree of flexibility by adding special uses to the types of land uses otherwise permitted in zoning districts. At its inception, zoning was justified on the ground that the strict separation of uses was in the public interest and promoted the public health, safety, and welfare. Rigid use separation, however, would exclude a variety of land uses historically associated with one another, such as the church in a residential neighborhood, or gasoline station in a neighborhood retail district. By allowing special uses, subject to conditions, the legislature allows a diversity of compatible uses while insuring that surrounding properties are protected from negative impacts in particular instances.
A variety of such special uses may be permitted in various zoning districts. In residential zones these often include adult homes, professional offices, group homes, swimming pools, nursing homes, and day care centers. In commercial zones these may include drive-in establishments, video arcades, marinas, shopping centers, gas stations, and convenience stores. When different uses can be made compatible with principal, as-of-right uses by the imposition of conditions, they are often permitted as special uses. Once a special use permit has been issued, it is not limited to the applicant, but affixes to and runs with, the ownership of the land.
SPECIAL USE PERMIT AND VARIANCE DISTINGUISHED
Variances were discussed in an earlier tutorial in
this series. A variance is a device that permits a property owner to do something on the
land that is prohibited by the zoning law. Variances are awarded to avoid practical
difficulties or unnecessary hardships in individual cases. The standards for issuing use and area
variances are specified in the state enabling
acts. "A variance is an authority to a property owner to use property in a manner
forbidden by the law while a special use permit allows the property owner to put his
property to a use expressly permitted by the law." Matter of North Shore Steak
House v. Board of Appeals of Thomaston (1972). Special uses are specifically permitted
under certain circumstances specified by the local legislature in the zoning law. This
amounts to a legislative finding that the use permitted is harmonious with neighborhood
character and ought to be allowed.
Local boards must use the correct standard when
evaluating land use applications. One error is confusing special use permits and
variances. The following case illustrates this mistake.
The Village of Thomastown created a twenty-five-foot buffer zone between zoning districts to accommodate
owners of lots divided by zoning district
boundary lines. The zoning law of
the Village allowed these owners to request a special use permit from the zoning board of
appeals to carry the use allowed in either zoning district twenty-five feet into the
other.
The owner of a lot occupied by a restaurant, which extended north into a single-family residential zone, applied to the board for a special use permit to pave twenty-five feet of the lot for parking associated with the restaurant. The owner also asked for a use variance in order to extend the parking farther than twenty-five feet into the single-family zoned portion of its lot.
After a review of the matter, the zoning board of appeals rejected both the application for the special use permit and the variance because they were "not in harmony with the general purpose and intent of the zoning plan." In reaching this conclusion, the board cited the same grounds for denying both the special use permit and the variance: that the premises were not unique, that the hardship was self-created, and that the use would have an adverse effect on the adjoining property. The Court of Appeals reversed the zoning board of appeals' denial of the special use permit and used the occasion to explain the critical difference between a variance and a special use permit:
The denial of the special use permit, based on factual findings used to support denial of the variance, ignores the fundamental difference between a variance and a special use permit. A 'variance' is an authority to a property owner to use property in a manner forbidden by the law while a special use permit allows the property owner to put his property to a use expressly permitted by the law. The inclusion of the permitted use in the law is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood. Denial of the permit on the ground that the extension of the parking lot twenty-five feet into the residential zone is 'not in harmony with the general purpose and intent of the zoning plan' is, thus, patently inconsistent. Matter of North Shore Steak House v. Board of Appeals of Thomaston (1972).
SPECIAL USE PERMITS AND LOCAL ADMINISTRATION
The local legislature has the inherent power to decide how special use permits are to be issued and may, if it chooses, retain some or all special use permit review and approval authority.
In Zeifman
v. Board of Trustees of the Village of Great Neck (1963), it was held that the
legislature has the inherent power to retain special use permit authority. Where the
legislative body retains special use permit issuance authority, there need not be
standards set forth that guide and limit its discretion. As the legislative body, a
legislature can "legislate" standards on a case-by-case basis. Even where
standards are included, they do not limit the legislature. It may apply additional
standards to particular applications in its legislative capacity. The legislature,
however, must not act capriciously. It may not apply different standards to similarly
situated properties or withhold a permit for reasons not related to the public health,
safety, and welfare for no reason at all, or for reasons that are contrary to the evidence
on the record.
In Green
Point Savings Bank v. Board of Zoning Appeals of Town of Hempstead (1939) and Larkin
Co. v. Schwab (1926), the courts held that when the legislature is the permit issuing
board, standards need not be contained in the law for the special use permit provisions to
be valid. See also Cummings v. Town Board of North Castle (1984) (concurring
and also holding that "even if the law sets forth standards, the legislature has not
divested itself of the power of further regulation unless the standards expressed purport
to be so complete or exclusive as to preclude the Board from considering other factors
without amendment of the zoning law").
Decisions made on special use permits must have a
rational basis. Where the legislative body heard no expert testimony or scientific
evidence, its denial of a permit was reversed where it was shown that the subject property
would produce no greater noise, traffic, and fumes than uses allowed by the zoning
as-of-right in the same district. J.P.M. Properties, Inc. v. Town of Oyster Bay
(1994).
ADMINISTRATION BY OTHER BODIES
Where
the local legislature decides not to review applications for special permits, it is
empowered to authorize the planning board or other administrative body, such as the zoning
board of appeals, to issue special use permits. The legislature must adopt standards to
guide the issuance of special use permits by an administrative body, but those standards
may be fairly general in scope. In an earlier example, it was noted that the Town Board of
Patterson authorized its zoning board of appeals to issue special use permits. This
authorization is found in the zoning law itself as are the standards that the zoning board
must follow in reviewing special permits.
Basing Decisions on Standards in the Regulations
Unless the legislative body retains special use permit authority, the
zoning law must contain reasonably clear standards to guide the reviewing board in determining whether
to grant a special use permit. These standards are of critical importance. If an applicant
can prove that it can meet these standards, the permit must be issued. When the standards
established by the legislature are met, it is not in the administrative body's power to
determine that the project will be detrimental to the neighborhood and the permit denied.
In North
Shore Equities, Inc. v. Fritts (1981), the zoning law permitted a four family apartment building in residential and commercial zones if the zoning board of appeals granted a special use permit. The board denied the applicant's request for the permit, but the court found that the record showed the applicant had complied with the special use standards. Since no proof on the record contravened the applicant's experts, there was insufficient evidence to support a decision to deny the application. The denial by the zoning board of appeals was annulled and the application was granted.
The
Second Department sustained a zoning law that authorized the board of appeals to permit
the use of premises as a gasoline filling station "after taking into consideration
the public health, safety and general welfare and subject to appropriate conditions and
safeguards." These standards were challenged as being too bring to provide meaningful
guidance to the board. See Aloe v. Dassler (1951). The court held that the
delegation of power was proper because "standards are provided which, though stated
in general terms, are capable of a reasonable application and are sufficient to limit and
define the Board's discretionary powers." See also Dur-Bar Realty Co. v. City of
Utica (1977) (holding that "the delegation of power from a legislative body to an
administrative body is impermissible unless accompanied by adequate standards to guide the
administrative body's exercise of discretion").
There are several cases in New York where courts have invalidated the special use permit provisions of a local zoning law because the standards were too broad and gave the reviewing board unrestricted discretion to approve or reject applications for permits.
To
avoid lawsuits that challenge the adequacy of standards in a special use permit law,
legislatures should include ample guidelines in the law for the reviewing agency to
follow. In Little v. Young (1949), it was held that the failure of the town to
prescribe standards for the zoning board of appeals to follow in granting special use
permits invalidated the board's power to review.
When delegating special permit authority to an administrative body, the legislature must adopt standards to guide the body in reviewing, conditioning, and approving special uses. These standards, for example, may require that gasoline stations and drive-in establishments provide adequate traffic safety improvements, that professional home offices provide adequate parking and landscape buffering, or that shopping centers provide adequate storm drainage and lighting controls to protect surrounding areas.
When standards are included in the zoning law, they must serve as the basis for any decision to deny a permit by an administrative body. Where a theater special use permit was denied based on traffic dangers, the denial was reversed because the local legislature did not authorize the administrative board to consider the traffic impacts of a proposed special use. In another case, the denial of a special use permit because of traffic impacts was reversed where there was no evidence on the record showing that the proposed use would create greater traffic than as-of-right uses allowed in the neighborhood under the zoning law.
Permit conditions are enforced through local administrative procedures. Once a condition is imposed on a local land use approval, it must be complied with before the local building inspector or department issues a building permit. If the condition is one that is to be met during construction, its terms must be complied with before the construction is complete and local authorities grant a certificate of occupancy.
The
purpose of imposing a condition on the approval of a land use permit is to balance the
owner's interest in developing the land and the community's interest in being protected
from any adverse impacts of that development. Conditions are imposed to minimize any
adverse impact of the proposed use on the neighborhood or community, and as a means of
enforcing the standards contained in the zoning law that special uses are to meet.
The reviewing board must meet several requirements to condition a
special use permit approval:
LIMITATIONS ON THE IMPOSITION OF CONDITIONS
The authority to impose conditions on the issuance of a special use permit is expressly delegated to local governments by statute. However, this authority is not without limits. The statute states that the conditions must be "reasonable" and "directly related to and incidental to the proposed use of the property." A number of cases have also held that conditions must be incidental and related to the proposed use of the property. See Conmar Bldrs. v. Board of Appeals (1964); Oakwood Is. Yacht Club v. Board of Appeals of the City of New Rochelle (1961); Pearson v. Shoemaker (1960).
Bernstein
v. Bd. of Appeals, Village of Matinecock (1969), held that conditions imposed on a
special use permit "cannot go beyond the law, which is the source of the board's
power." The power to impose conditions is not unlimited, but must be based on facts
in the record and criteria found in the law.
Any
condition imposed on an applicant for a special use permit must be imposed to achieve one
or more of the standards contained in the special use permit provisions. If the permit is
to be conditioned or denied, the decision to deny or impose conditions must be made for
the purpose of enforcing the articulated standards.
In Holmes
& Murphy, Inc. v. Bush (1958), the court invalidated the denial by the zoning
board of appeals of a special use permit. The landowner applied for a special use permit
in an industrial district. The law permitted the use unless it constituted a "trade,
industry or use which is or may be injurious, offensive or noxious by reason of vibration
or noise or by the emission of odor, stenches, dust, smoke or gas." The zoning board
of appeals denied the permit because its members suspected that the use would require the
use of large trucks.
Although the landowner would have to comply with the local regulation of trucks contained elsewhere in the municipal code, this was not a proper basis for the board to deny the special use permit. The court concluded that it was improper for the village to deny a special use permit on the grounds that excessively heavy trucks would be used on site because no such consideration was contained in the standards found in the provisions of the law related to special use permits.
Often,
but not always, conditions that limit the details of operation of a business are set aside
as not relating to the proposed use of the land. When a use variance for a real estate
office in a residential district was conditioned on the requirement that it be used only
in conjunction with the applicant's personal real estate business, that condition was set
aside as unrelated to the impacts of the use proposed. It was strictly personal in nature.
When the details of the operation of a nursery school, including the age of students,
hours of school operation, and the number of hours to be worked by a caretaker, were the
subjects of a condition imposed on the granting of a variance, the court determined that
these details were unrelated to zoning matters and inappropriate. Bernstein v. Village
of Matinecock Board of Appeals (1969). These same limitations apply to conditions
imposed on special use permits.
However, a condition limiting the period of operation of the school from September through June was deemed valid because the definition of a private school in the law contained a similar limitation. In another case, a condition that limited an automobile repair shop from keeping more than two non-employee vehicles outside the shop during working hours was sustained as related to the use of the land proposed by the owner's application.
In Old
Country Burgers v. Town of Oyster Bay (1990), the court annulled conditions that dealt
with the manner of a business' operation. The use of the land as a drive-through
restaurant was allowed in the law as a specially permitted use. The board approved the
proposed use but imposed meal-time restrictions on the operation of drive through windows.
The court stated that since there were no studies or other evidence that showed the
potential for traffic problems, the restriction was without basis. Instead, the condition
amounted to an impermissible regulation of the manner of operation rather than an attempt
to minimize adverse affects.
The standards governing the granting of special use permits, as with the approval of subdivision and site plan applications, are contained in the zoning law or other regulations adopted by the local legislature. Before granting its approval of the application, the reviewing board must insure that the standards contained in the law or other regulations are complied with by the proposed development. Frequently approval is conditioned on the developer agreeing to modify the design of the development or to add site features to meet the underlying standards adopted by the legislature. These conditions are appropriate when their purpose is to insure the standards are complied with.
Although
the imposition of conditions is clearly within the authority of the governing body, the
conditions must serve to achieve the standards contained in the zoning law or they can be
declared invalid. Courts also invalidate a condition when there is no evidence in the
record justifying its imposition, or when the condition is unreasonable or is not related
to the impacts of the proposed development.
The Application and its Review
A
landowner makes the decision to apply for a special use permit. The application must be
submitted to the local administrative body that is delegated review and approval
authority.
The applicant should be familiar with the standards that are contained in the law that give the reviewing body the authority to deny or condition the permit if the standards are not met by the proposed project. If a proposed project meets these standards, the special use permit must be issued. If not, it may be subject to conditions imposed to meet those standards or denied if the project cannot meet the standards even when conditions are imposed.
Initially,
the burden is on the applicant to demonstrate that the standards can be met. This can be
done by completing traffic studies, presenting landscape plans, and submitting architect's
renderings of the completed project as seen from relevant points. Where such evidence
demonstrates that the proposed project complies with the standards, the reviewing board
must approve the application unless it can demonstrate that the applicant's evidence is
faulty or that it has found additional evidence that rebuts the information submitted by
the applicant. If the reviewing board imposes a condition or denies an application without
evidence that supports that action, it runs the risk of reversal in court where the
applicant has submitted competent evidence that the project meets the legislated
standards.
The
reviewing board's decision on the special use permit must be rendered within sixty-two
days of the date of the public hearing. Any
decision of the reviewing board must be made on evidence found in the record of its
proceedings. That decision must be filed in the office of the municipal clerk within five business days and
a copy mailed to the applicant.
County/Regional Planning Agency
In certain instances, the reviewing board must submit special use permits to a county or regional planning agency. Such referral must be sent at least ten days before the public hearing on the special use permit, accompanied by a full statement of the matter under consideration.
General Municipal Law
§ 239-m requires certain special use permits to be submitted to the county or
regional planning agency for review and comment. Failure to provide the notice and referral required by General Municipal Law
§ 239-m amounts to a jurisdictional
defect in the responsible agency's ultimate action on the permit application. Old
Dock Associates v. Sullivan (1989). Any permit awarded without such referral may be
annulled by a court.
Certain matters must be referred to the county or regional planning agency. Proposed special use permit applications must be referred when they affect property within 500 feet of (a) a city, town, or village boundary; (b) the boundary of an existing or proposed county or state park or recreation area; (c) the right-of-way of any existing or proposed county or state parkway, thruway, expressway, road, or highway; (d) the right-of-way of any stream or drainage owned by the county; (e) the boundary of any county or state owned land on which a public building or institution is situated; or (e) the boundary of a farm operating under an agricultural district governed by the Agriculture and Markets Law.
The
county must make its recommendation within thirty days. If the county recommends
modification or disapproval, the board may accept and implement the recommendation, or it
may vote to override the county. A majority plus one of the board's members must vote to
override the county's recommendation in most counties in the state.
The
provisions of the State Environmental Quality Review Act (SEQRA), which requires public agencies to consider the
impacts of their land use decisions on the environment,
must be complied with by the reviewing board. Where the approval of a special use permit
may have a potentially significant adverse impact on the environment, the extensive
procedural requirements and the extended timetable of SEQRA must be followed and
coordinated with other requirements for the issuance of a special use permit. Normally the
administrative body that reviews the application for the special use permit will be
designated the lead agency that is charged with
the legal responsibility for determining whether the proposed project may have a
substantial negative impact on the environment and, if so, complying with the extensive
requirements of SEQRA.
The rules regulating the issuance of special use permits are defined carefully by
state statutes. These statutes define a special use permit, empower the local legislative
body to authorize a local agency to grant such permits, allow conditions to be attached to
them, authorize the waiver of permit requirements in appropriate circumstances, require
public hearings to be held before special use permits are granted, require compliance with
environmental review provisions of state law, provide for notice to county and regional
planning agencies, require the filing of decisions on special use permits, and allow any
person aggrieved by the board's decision to petition the courts to review it.
Village Law §
7-725-b,
Town Law § 274-b and General City Law §
27-b.
The following list generally outlines the procedural steps followed for
special use permit applications.
Where special use permit authority is delegated to a local administrative body, the legislature must establish standards to guide the board in reviewing a permit application. Although the board may impose reasonable conditions on the permit approval, the conditions imposed "cannot go beyond the law, which is the source of the Board's power." As with any land use decision, conditions imposed on a special use permit approval must be directly related and incidental to the proposed use of the property and the conditions must be sufficiently clear and definite to remove any doubt as to the allowed use.
Landowners or neighbors may challenge a decision of a local board to award, deny, or condition a special use permit. The following is a list of some of the challenges that aggrieved parties may bring against administrative bodies for their decisions on special use permits:
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