What’s So Special About Special Use Permits?
March 28, 2022
The “Special Use Permit” is a zoning term and process used by a municipality to encourage, but still regulate, land use in a zoning district by making it subject to a special review and criteria detailed in the zoning ordinance. See, Town Law Section 274-b, Village Law Section 7-725-b and City Law Section 27-b.
The “Special Use Permit” also known as “special permit,” “special exception” and “conditional use permit” is defined as:
“authorization of a particular land use which is permitted in a zoning ordinance or local law, subject to requirements imposed by such zoning ordinance or local law to assure that the proposed use is in harmony with and will not adversely affect the neighborhood if such requirements are met.” Town Law 274-b.
A special use permit gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right. Retail Prop. Trust v. Bd. of Zoning Appeals of Town of Hempstead, 98 NY2d 190 . The significance of this distinction is important. As the Court of Appeals held, there is fundamental difference between a variance and a special exception permit. See, North Shore Steak House, Inc. v Board of Appeals of the Inc. Village of Thomaston, 30 NY2d 238 . The Courts have repeatedly held that the inclusion of the permitted use in the ordinance as a special use permit is “tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood.” Id.
Although not an entitlement, uses permitted by special permit are generally considered “as-of-right” uses that are subject to a public hearing and conditions for approval. New York courts have also held that because the use is already “permitted,” an applicant requesting a special use permit “need only demonstrate compliance with any legislatively imposed conditions on an otherwise permitted use,” and is only subject to “conditions attached to the use to minimize its impact on the surrounding area” Id.
Importantly, the decision to grant or deny a special use permit must be based on the evidence in the record, and a proposed special use permit cannot be denied based solely on generalized community opposition. See, Twin County Recycling Corp. v Yevolli, 90 NY2d 1000 . The decision to deny a special use permit must not only be supported by substantial evidence, but also evidence must be shown that the proposed special use permit would have negative impacts that exceed the impacts associated and anticipated with the use permitted “as-of-right” in the zoning district such as increased traffic for a commercial use. See, QuickCheck Copr. v Town of Islip 166 AD3d 982 [2d Dept. 2018] (Special permits were required to use the subject property as a convenience market, a minor restaurant, and a gasoline service station. There was no showing that the proposed use of a gasoline service station would have a greater impact on traffic than would other uses unconditionally permitted. The alleged increase in traffic volume was an improper ground for the denial of the special permit. Second Department annulled the Town Board’s determination, and remitted the matter to the Town Board for the issuance of the requested special use permit).
However, requests for special permits are not guaranteed if the applicant cannot, through the imposition of reasonable conditions, meet the special use permit requirements of the local ordinance. See, Tandem Holding Corp. v Bd. of Zoning Appeals of Town of Hempstead, 43 NY2d 801 .
Although special use permits are viewed to be supportive of existing land use in certain zoning districts, it is critical for land use practitioners to develop a strong record that complies with the specific requirements for use(s) permitted by special use permits.