Second Department Annuls Local Planning Board’s Grant of Special Use Permit and Site Plan Approval
December 06, 2021
In Matter of Marcus v. Planning Board of the Village of Wesley Hills, et al., the respondent, Rockland Tree Expert, Inc., d/b/a Ira Wickes, Arborist (“Wickes”), sought a special use permit and site plan approval to conduct arborist and landscaping services and to operate a nursery on its property located within the Village of Wesley Hills (the “Village”), in Rockland County. The Village Planning Board (the “Planning Board”) granted Wickes’ application in both respects, but the Planning Board’s determination subsequently faced a CPLR Article 78 challenge. The Rockland County Supreme Court dismissed the Article 78 proceeding and upheld the Planning Board’s determination. The petitioner appealed.
A special use permit is proper to authorize “a use of [real property] that has been found by the local legislative body to be appropriate for the zoning district and ‘in harmony with the general zoning plan and will not adversely affect the neighborhood’” (citations omitted). An application for a special use permit should be granted where it “satisfies the criteria set forth in the zoning law.” However, if the application fails to meet even one of the conditions of the applicable zoning ordinance, denial is appropriate. Further, the local board hearing the application “does not have authority to waive or modify any conditions set forth in the ordinance” (citations omitted).
Here, because Wickes offered arborist services, landscape services, and operated a wholesale nursery, the Village Code required that its proposed use “have frontage on and practical access to two major roads” (Village Code § 230-26 [N] ). However, in deciding the special use permit application, the Planning Board waived that requirement and “deem[ed] ‘practical access’ to a second major road unnecessary.” The Second Department concluded that the Planning Board lacked authority to waive this requirement, and thus abused its discretion in doing so.
Additionally, the Planning Board’s site plan approval was improper because the site plan failed to “conform to the requirements of” the Village Zoning Law—a necessary prerequisite for approval (see Village Code § 230-45). Specifically, “the Village Zoning Law requires that a lot in the [zoning district were Wickes’ property is located] have a maximum gross impervious surface ratio of .25 (see Village Code § 230 Attachment 1).” Wickes’ site plan “had a proposed gross impervious surface ratio of .44.”  The Second Department held that the Planning Board abused its discretion in approving the site plan despite its noncompliance with such requirement.
Ultimately, the Second Department reversed the lower court’s decision dismissing the Article 78 proceeding and annulled the Planning Board’s grant of the special use permit and approval of the site plan.
Takeaway: While local administrative bodies deciding land use applications generally enjoy broad discretion, compliance with the local zoning code is still required. A zoning board’s blatant disregard or indifference to applicable zoning requirements is often an abuse of discretion and may result in the reversal and annulment of its determination. That was precisely the case here.
 The Village Code defines “impervious surface” as “[t]hose surfaces which do not absorb stormwater. All buildings, parking areas, driveways, roads, sidewalks and any areas in concrete, asphalt or packed stone shall be considered impervious surfaces within this definition. In addition, other areas determined by the Village Engineer to be impervious within the meaning of this definition will also be classed as impervious surfaces” (Village Code § 230-5). The Village Code defines “impervious surface ratio” as “[t]he total amount of impervious surface on a lot divided by the lot area” (Village Code § 230-5).