November 24, 2015

In Green Materials of Westchester v. Town of Cortlandt, 2015 WL 6160910 (2nd Dept. 2015), the Appellate Division held that the Supreme Court “properly concluded that the Zoning Board of Approval’s (ZBA) determination was not supported by the evidence in the record and lacked a rational basis and, hence, was arbitrary and capricious.”

The Petitioner sought to engage in concrete aggregate recycling activities on their property. The ZBA had determined that under the relevant local law, a “specialty trade contractor” is required to apply for a special use permit in order to engage in certain activities on sites zoned for Highway Commercial uses, including concrete aggregate recycling activities, which previously did not require the issuance of a special use permit.

The ZBA had also determined that, if such a “specialty trade contractor” engaged in activities that included the processing of raw materials, it was no longer considered a “specialty trade contractor” within the meaning of the zoning and planning ordinance, and that such a special use permit could not be issued.

However, the key determination made by the ZBA was that Petitioners intended to engage in activities that included the processing of raw materials on the site, despite Petitioners’ repeated statements and assurances to the contrary. The Appellate Division found that “the record is replete with instances where the petitioners disputed, as nothing more than baseless rumor and suspicion, the claim that they intended to engage in activities other than concrete aggregate recycling on the site.”

The Appellate Division also found that “the record is also devoid of any evidence supporting the ZBA’s conclusion that the petitioners would engage in activities other than those which were explicitly approved or permitted as of right under the zoning and planning ordinance in force prior to July 20, 2010, or subject to the issuance of a special use permit under L.L. 12.”

Based on the foregoing, the Appellate Division held that the Supreme Court properly concluded that the ZBA’s determination in that regard was irrational, and properly granted that branch of the petition which was to annul the ZBA’s April 23, 2012 determination.

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