Frittita v. Pax

251 A.D.2d 1077, 675 N.Y.S.2d 577, 1998 N.Y. App. Div. LEXIS 7186

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 1998
• Status: Published

Opinion

—Judgment unanimously reversed on the law with costs and petition dismissed. Memorandum: Supreme Court erred in annulling the determination of the Town Board of Grand Island (Board) that denied the application of petitioner for a special use permit to keep a horse on her property and in directing the Board to issue a special use permit to petitioner. “Entitlement to a special [use] permit is not a matter of right (Matter of Lemir Realty Corp. v Larkin, 11 NY2d 20, 24) and compliance with ordinance standards must be shown before a special [use] permit can be granted (see Matter of Tandem Holding Corp. v Board of Zoning Appeals, 43 NY2d 801, 802; Matter of Cappadoro Land Dev. Corp. v Amelkin, 78 AD2d 696, app dsmd 54 NY2d 833)” (Matter of Roginski v Rose, 97 AD2d 417, affd 63 NY2d 735 for reasons stated below). Failure to meet any one of the conditions set forth in the ordinance is sufficient to support the denial of the permit application (see, Matter of Wegmans Enters, v Lansing, 72 NY2d 1000, 1001-1002; Matter of Connors v Sullivan, 171 AD2d 982, 982-983). The record supports the Board’s determination that petitioner did not show that “[t]he use is so designed, located and proposed to be operated that the public health, safety, welfare and convenience will be protected” (Grand Island Code § 49-27 [B]). Thus, the denial of the application has a rational basis and should not be disturbed (see, Matter of Monro Muffler/Brake v Town Bd., 222 AD2d 1069). (Appeal from Judgment of Supreme Court, Erie County, Michalek, J. — CPLR art 78.) Present — Green, J. P., Lawton, Pigott, Jr., Callahan and Balio, JJ.