Town Board was wrong to impose Special Permit conditions where the use was permitted and a Special Permit not required

Conditions on site plan approval must relate only to use of the property and not to the persons who own it.


Petitioners owned land on which they operated a motor vehicle sales and service business. They bought an adjacent parcel of vacant land for the purpose of expanding their business. Both properties were zoned "Commercial C: Heavy Commercial District.," in which the motor vehicle sales and service business was a permitted use. The original parcel had been used for the motor vehicle business since prior to the adoption of the current Town Code, and had therefore not been subject to site plan review. The planning board recommended four conditions for the approval of the site plan, and the Town Board added eight more conditions, most of which were required for a special permit use. The Petitioners brought an Article 78 proceeding contending that Special Permit conditions were inappropriate because no Special permit was required in the zone where the property was located. The record disclosed that the conditions were imposed because of past behavior of the petitioners in the area of compliance with the Town Code. The Appellate Division, Fourth Department, in modifying the judgment of the trial court, held that Special Permit conditions should not be imposed where the use was a permitted one without a special permit, and that site plan approval conditions should be related to the use of the property being reviewed, and not to the past conduct of the owners of that property.

LOADING PDF: If there are any problems, click here to download the file.

Reference Info:Decision | State, 2nd Circuit, New York | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Reuben Ortenberg, Woods Oviatt Gilman, LLP | Attorney Advertising

Written by:


Woods Oviatt Gilman, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.