Orange and Rockland Utilities, Inc. v. Town Bd. of Town of Stony Point

• Decision Date: 03 April 1995
• Citation: 214 A.D.2d 573,624 N.Y.S.2d 640
• Parties: In the Matter of ORANGE AND ROCKLAND UTILITIES, INC., Respondent, v. TOWN BOARD OF the TOWN OF STONY POINT, Appellant, Paul Ely, et al., Intervenors-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 640

624 N.Y.S.2d 640

214 A.D.2d 573

In the Matter of ORANGE AND ROCKLAND UTILITIES, INC., Respondent, v. TOWN BOARD OF the TOWN OF STONY POINT, Appellant, Paul Ely, et al., Intervenors-Appellants.

Supreme Court, Appellate Division,

Second Department.

April 3, 1995.

Stephen J. Cole-Hatchard, New York City, for appellant.

Greenbaum & Moran, Pearl River (Herschel Greenbaum, of counsel), for intervenors-appellants.

Granik Silverman Sandberg Campbell Nowicki Resnik Hekker, New City (Kenneth H. Resnik, of counsel), for respondent.

Before MANGANO, P.J., and ROSENBLATT, MILLER and RITTER, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the Town Board of the Town of Stony Point, dated September 8, 1992, denying, after a hearing, the petitioner's application for a special use permit, the Town Board of the Town of Stony Point appeals and the intervenors separately appeal from a judgment of the Supreme Court, Rockland County (LaCava, J.), entered August 2, 1993, which, inter alia, annulled the determination, directed the Town Board of the Town of Stony Point to issue the special use permit subject to any lawful prerequisites and reasonable conditions it deemed fit, and thereupon granted the petition. The intervenors' notice of appeal from the order dated June 7, 1993, is deemed a premature notice of appeal from the judgment (see, CPLR 5520[c].

ORDERED that the judgment is affirmed, with one bill of costs.

We agree with the determination of the Supreme Court that the proposed use of property for the construction of an electrical or utility substation was in conformance with the statutory preconditions for issuance of special permits, and that the denial of the petitioner's application for a special permit was not supported by "substantial evidence". Unlike a variance, which allows the use of property in a manner otherwise prohibited by an ordinance, a special permit or exception authorizes the use of property in a manner expressly permitted (see, Matter of North Shore Steak House v. Board of Appeals of Inc. Vil. of Thomaston, 30 N.Y.2d 238, 331 N.Y.S.2d 645, 282 N.E.2d 606; Matter of Texaco Ref. v. Valente, 174 A.D.2d 674, 571 N.Y.S.2d 328). Such a classification is tantamount to a legislative finding that, if the special exception conditions are met, the proposed use is compatible with the standards and objectives of the zoning ordinance, and will not adversely affect the neighborhood and the surrounding areas (see, Matter of Lee Realty Co. v. Village of Spring Val., 61 N.Y.2d 892, 474 N.Y.S.2d 475, 462 N.E.2d 1193; Matter of North Shore Steak House v. Board of Appeals of Inc. Vil. of Thomaston, supra; Matter of C.B.H. Props. v. Rose, 205 A.D.2d 686, 613 N.Y.S.2d 913; Matter of J.P.M. Props. v. Town of Oyster Bay, 204 A.D.2d 722, 612 N.Y.S.2d 634; Matter of C & B Realty Co. v. Town Bd. of Town of Oyster Bay, 139 A.D.2d 510, 526 N.Y.S.2d 612; Matter of Old Court Intl. v. Gulotta, 123 A.D.2d 634, 507 N.Y.S.2d 22).

Although there is no automatic entitlement to a special permit, where, as here, the petitioner demonstrates that the proposed use is in conformance with the conditions imposed, a permit must be granted unless there are reasonable grounds for denying it which are supported by substantial evidence (see, Matter of Carrol's Dev. Corp. v. Gibson, 53 N.Y.2d 813, 439 N.Y.S.2d 921, 422 N.E.2d 581; Matter of C & A Carbone v. Holbrook, 188 A.D.2d 599, 591 N.Y.S.2d 493; Matter of Texaco Ref. v. Valente, 174 A.D.2d 674, 571 N.Y.S.2d 328). While the Town Board of the Town of Stony Point (her...