Mobil Oil Corp. v. Oaks

• Decision Date: 10 December 1976
• Parties: Application of MOBIL OIL CORPORATION, Appellant, v. Robert OAKS et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 276

390 N.Y.S.2d 276

55 A.D.2d 809

Application of MOBIL OIL CORPORATION, Appellant, v. Robert OAKS et al., Respondents.

Supreme Court, Appellate Division, Fourth Department.

Dec. 10, 1976.

Dutcher, Witt, Sidoti & Richards, Frank V. Sidoti, Rochester, for appellant.

Whitbeck, Holloran & Keigher, John J. Keigher, Rochester, for respondents.

Before CARDAMONE, J.P., and SIMONS, MAHONEY, DILLON and WITMER, JJ.

MEMORANDUM:

Petitioner, Mobil Oil Corporation, appeals from a judgment in an Article 78 proceeding which sustained the determination of respondent, Town Board of Henrietta, denying the grant of a special permit to petitioner.

Mobil, owner of a gasoline service station on the southeast corner of Lehigh Station Road and East Henrietta Road in the Town of Henrietta, Monroe County, had sought a special permit to construct a gasoline service station upon a parcel of land situate on the northeast corner of said intersection. The subject property lies within an 'A' Commercial District. Section 39--13(2) of the Henrietta Zoning Ordinance permits gasoline filling stations in 'A' Commercial Districts subject to the particular requirements of section 39--31 of the zoning ordinance and provided that the applicant obtain a special permit from the Town Board following a public hearing. Section 39--13 of the Henrietta Zoning Ordinance allows gasoline filling stations in 'A' Commercial districts provided a special permit be granted pursuant to the requirements of section 39--31 and section 39--35 of the Ordinance. Section 39--31 contains many restrictions on the issuance of a special use permit for a filling station. It sets forth building setback provisions, approach driveways, signs, lot size and curb requirements ( § 39--31(a)); and fuel and gasoline pump set-back requirements ( § 39--31(b)).

In addition section 39--35 of the Zoning Ordinance provides the Town Board guidance in making its determination whether to grant or deny a special permit. Among the six standards to be met before a special use permit may be issued, the Town Board must determine 'whether the proposed use will be in harmony with the existing and probable future development of the neighborhood in which the premises is situated' (Henrietta Zoning Ordinance, § 39--35(c)).

Following the public hearing the Town Board denied the application for a special permit citing four separate and distinct reasons. Special Term found two of the reasons not supported by substantial evidence and a third placed an additional burden on the applicant not required by the ordinance. Special Term, however, concluded that finding numbered '2', i.e., the transfer of operations will have a disturbing influence upon the existing and probable character of the area, to be a proper consideration, supported by substantial evidence and sufficient for the denial of the special permit. We agree.

The approval or denial of an application for a special use permit is an administrative rather than a legislative function and the action of the Town Board in denying such a permit is subject to judicial review under Article 78 of the CPLR (Mobil Oil Corp. v. City of Syracuse, 52 A.D.2d 731, 381 N.Y.S.2d 924). A special use permit differs from a variance in that the former contemplates a use expressly permitted by a particular zoning ordinance while the latter is authority to use property in a manner which is otherwise forbidden. Thus, when the ordinance sets forth conditions to be met before a special permit will issue, the burden of proof on an applicant requires a showing of compliance with the conditions and the board's power is limited to determining whether an applicant for a...