Texaco Refining & Marketing, Inc. v. Valente

• Decision Date: 17 June 1991
• Citation: 174 A.D.2d 674,571 N.Y.S.2d 328
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of TEXACO REFINING & MARKETING, INC., Appellant, v. John A. VALENTE, etc., et al., Respondents.

Page 328

571 N.Y.S.2d 328

174 A.D.2d 674

In the Matter of TEXACO REFINING & MARKETING, INC., Appellant, v. John A. VALENTE, etc., et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

June 17, 1991.

Farrell, Fritz, Caemmerer, Cleary, Barnosky & Armentano, P.C., Uniondale (John F. Coffey, James A. Bradley and Kenneth Auerbach, of counsel), for appellant.

Charlene M. Indelicato, Corp. Counsel, New Rochelle, for respondents.

Before THOMPSON, J.P., and BRACKEN, EIBER and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the City of New Rochelle, dated May 9, 1989, which, after a hearing, denied the petitioner's application for a special use permit and an area variance, the petitioner appeals from a judgment of the Supreme Court, Westchester County (West, J.), entered October 27, 1989, which dismissed the proceeding.

ORDERED that the judgment is modified, on the law, without costs or disbursements, the petition is granted and the determination is annulled to the extent that the matter is remitted to the respondent Zoning Board of Appeals of the City of New Rochelle for the purpose of issuing the special use permit requested by the petitioner, subject to appropriate conditions, the portion of the determination which denied an area variance is confirmed and the petition is otherwise denied.

The petitioner is the owner in fee simple of the property located at 1451 Weaver Street in the City of New Rochelle. There is a full-service gasoline station on the property. By application dated September 23, 1988, the petitioner applied to the respondent Zoning Board of Appeals of the City of New Rochelle (hereinafter the Board) for a special use permit allowing it to install self-service pumps and to create a convenience store in the building already existing on the property. The petitioner also requested an area variance to permit it to install a canopy over the self-service area, the proposed canopy having less than the statutorily required 30 foot setback from the street line. After a public hearing on the matter was held, the board adopted a resolution denying the petitioner's application in its entirety. The petitioner then brought the instant proceeding pursuant to CPLR article 78. The Supreme Court dismissed the proceeding, finding that the denials had a rational basis and were supported by substantial evidence.

The Board based the denial of the special use permit on its finding that the proposed use would increase traffic congestion. The Board also noted that the proposed 24-hour operation of the new gas station would be totally out of character with the neighborhood.

Unlike a variance, a special use permit does not involve a use of property forbidden by the zoning ordinance but instead constitutes a recognition of a use which the ordinance permits under stated conditions (see, Matter of North Shore Steak House v. Bd. of Appeals of Inc. Vil. of Thomaston, 30 N.Y.2d 238, 243, 331 N.Y.S.2d 645, 282 N.E.2d 606). A reviewing board is required to grant the special use permit unless there are reasonable grounds for denying it (see, Matter of Carrol's Dev. Corp. v. Gibson, 53 N.Y.2d 813, 439...