Carrol's Development Corp. v. Gibson
| Decision Date | 24 January 1980 |
| Parties | In the Matter of the Application of CARROL'S DEVELOPMENT CORPORATION, Appellant, v. Beth GIBSON et al., Constituting the Zoning Board of Appeals of the Town of Penfield, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Laverne, Sortino & Hanks, Rochester by Robert P. Hanks, Rochester, for appellant.
Richard A. Kroll, Rochester by Richard Horwitz, Rochester, for respondents.
Before SIMONS, J. P., and HANCOCK, SCHNEPP, CALLAHAN and WITMER, JJ.
Appellant, Carrol's Development Corp., the proprietor of a Burger King Restaurant located in the Town of Penfield, filed an application with the Penfield Zoning Board of Appeals seeking a special permit to erect a freestanding, double-faced, illuminated "Burger King" sign at its Penfield Road premises. It was disclosed at a hearing conducted before the Board that the proposed sign would be 36 square feet, smaller than a previous Carrol's sign, and would be of the same height as the other sign. The Board in a written decision denied the special permit application, finding (1) the attached sign and structure to be adequate means of business identification and (2) the placement of free-standing signs for individual businesses to be inconsistent with the Panorama Plaza area. Appellant commenced this Article 78 proceeding seeking review of the Zoning Board decision on the grounds that it was unsupported by substantial evidence and was illegal, arbitrary and capricious and in violation of the provisions of § 29-16 of the Penfield Zoning Ordinance. Appellant appeals from Special Term's denial of that application.
The Penfield Code (§ 29-16) adopted to regulate signs within the township provides standards for permitted signs (§ 29-16, subd. E) and establishes a procedure for obtaining a special exception use permit (§ 29-16, subd. D (2)). Where such a zoning ordinance authorizes a use permit subject to administrative approval an applicant need only show that the use is contemplated by the ordinance subject only to the conditions attached to its use to minimize its impact on the surrounding area. The burden of proof on an applicant for a special use permit is much lighter than that for a variance and requires only a showing that the use complies with the conditions imposed to minimize the anticipated impact of a legislatively authorized use on the surrounding area (see Mobil Oil Corp. v. City of Syracuse, 52 A.D.2d 731, 381...
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PRESIDENT AND DIRECTORS v. BD. OF ZON. ADJ.
...a use variance." Verona, Inc. v. Mayor & Council of W. Caldwell, 49 N.J. 274, 229 A.2d 651, 656 (1967); Carrol's Dev. Corp. v. Gibson, 73 A.D.2d 1050, 425 N.Y.S.2d 420, 421 (1980), aff'd, 53 N.Y.2d 813, 439 N.Y.S.2d 921, 422 N.E.2d 581 (N.Y.1981); 3 EDWARD H. ZIEGLER, JR., RATHKOPF'S LAW OF......
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...v. Board of Appeals of Inc. Vil. of Thomaston, 30 N.Y.2d 238, 243-244, 331 N.Y.S.2d 645, 282 N.E.2d 606; Matter of Carrol's Dev. Corp. v. Gibson, 73 A.D.2d 1050, 1051, 425 N.Y.S.2d 420, affd. 53 N.Y.2d 813, 439 N.Y.S.2d 921, 422 N.E.2d After a public hearing, the respondent Board of Appeals......
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Schadow v. Wilson
... ... Corp. v. Gibson, 53 N.Y.2d 813, 439 N.Y.S.2d 921, 422 N.E.2d 581, affg. on mem ... proposed use be in harmony with the appropriate and orderly development of the district and not detrimental to the orderly development of adjacent ... ...
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The President and Directors of Georgetown College v. District of Columbia Board of Zoning Adjustment, No. 01-AA-1182 (D.C. 12/4/2003)
...be if [it] sought a use variance." Verona, Inc. v. Mayor & Council of W. Caldwell, 229 A.2d 651, 656 (N.J. 1967); Carrol's Dev. Corp. v. Gibson, 425 N.Y.S.2d 420, 421 (1980), aff'd, 422 N.E.2d 581 (N.Y. 1981); 3 EDWARD H. ZIEGLER, JR., RATHKOPF'S LAW OF ZONING AND PLANNING § 61.34, at 61.93......