Kidd-Kott Construction Co. v. Lillis

124 A.D.2d 996, 508 N.Y.S.2d 792, 1986 N.Y. App. Div. LEXIS 62321

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 1986
• Status: Published

Opinion

Petitioner applied to the Town Board for a special permit allowing use of its property for a self-service car wash. The permit was denied after a public hearing.

The testimony of area residents regarding the effect of increased traffic upon property values is not sufficient to support the denial of the permit (see, Matter of Frangella Mushroom Farms v Zoning Bd. of Appeals, 87 AD2d 962, affd 57 NY2d 811; Matter of New York Tennis Assoc. v Town of Vestal, 97 AD2d 899). There is no evidence before the Town Board that the proposed use would increase traffic or affect property values to any greater extent than a use permitted within the district as a matter of right (see, Matter of Lee Realty Co. v Village of Spring Val., 61 NY2d 892, 894; Matter of Hobbs v Albanese, 70 AD2d 1049, 1050).

The Board’s findings that the proposed use would constitute a "possible safety hazard” and "could substantially affect property values” are conclusory in form and based on no more than speculation and conjecture and cannot serve as a basis for denial of a permit (see, Matter of Ennis v Crowley, 12 AD2d 999, 1000; Matter of Pluto’s Retreat v Granito, 80 AD2d 899, 900-901).

Also, there is no evidence to support the determination that the proposed use is not a reasonable buffer to private residences. That conclusion is contrary to the findings of the Planning Board as well as to the settled rule that the inclusion of a use in the ordinance is a per se finding that it is in harmony with the neighborhood (Matter of North Shore Steak House v Board of Appeals, 30 NY2d 238, 243).

Though we annul the Board’s determination and direct that a permit be issued, the matter is remitted to the Board to consider whether any reasonable conditions consistent with the ordinance should be imposed upon issuance of the permit (Matter of Pluto’s Retreat v Granito, supra.) (Article 78 proceeding transferred by order of Supreme Court, Erie County, Ostrowski, J.) Present — Dillon, P. J., Callahan, Boomer, Balio and Lawton, JJ.