Land Use Training Program
for Local Officials
Tutorial
VI - Special Use Permits & Permit Conditions
New York Municipal Insurance Reciprocal
land use Law Center - Pace University School of Law
New York Planning Federation
TABLE OF CONTENTS
INTRODUCTION *
SPECIAL USE PERMIT AND VARIANCE DISTINGUISHED *
SPECIAL USE PERMITS AND LOCAL ADMINISTRATION *
Legislative Role *
ADMINISTRATION BY OTHER BODIES *
Basing Decisions on Standards in the Regulations *
Conditions *
LIMITATIONS ON THE IMPOSITION OF CONDITIONS *
Administration and Procedure *
The Application and its Review *
County/Regional Planning Agency *
Environmental Review *
SUMMARY *
REFERENCES *
QUIZ *
Special use permits are referred to by a variety of terms in local practice and court decisions. These terms include special exception use, special permit, special exception permit, conditional use permits, and special exceptions. The statutory term is special use permit.
New York statutes define a special use permit
as the authorization of a particular land use that is permitted in a zoning law subject to
specific requirements that are imposed to assure that the proposed use is in
harmony with the immediate neighborhood and will not adversely affect
surrounding properties. An example is a home office or home occupation in a single-family
residential neighborhood. A law, for example, might permit single-family homes as-of-right in a residential district and home occupations upon the
issuance of a special use permit. This means that the legislature has concluded
that home occupations are harmonious uses in a residential district, but that conditions may need to be imposed on them
to ensure that the size, layout, parking, and lighting do not adversely affect
the residential neighborhood.
The local legislature is empowered to authorize the planning board or other local administrative body to grant special use permits as set forth in the local zoning law. Some legislatures have delegated this authority to the planning board, some to the zoning board of appeals, and some have retained the authority to issue special use permits.
Village Law § 7-725-b, Town Law § 274-b and General City Law § 27-b.
As an
example, the Town of Patterson's Zoning Law, Article XVI (Special Permits for
Residence Districts), Section 154-75, provides standards for the Zoning Board
of Appeals to grant a special use permit for a religious institution. According
to the law (and recognizing that RELUIPA may now also come into play), the
project may be permitted provided that: (A) The lot size and setbacks conform to all the requirements of
the district in which it is located. (B) The lot frontage shall conform to the requirements
of the district in which it is located. (C) Said frontage and access to lot
shall be on a state or county road, and (D) The maximum lot coverage shall be
ten percent.
In the Town of Patterson zoning law, a special use permit is granted by the Zoning Board of Appeals. The law lists a variety of uses for which a special use permit may be awarded, some of which are: undertaker establishments, clubs, religious institutions, schools, trailer parks, hospitals, shopping centers, hotels and motels, and industrial parks.
The Zoning Board of Appeals in the Town of Patterson is limited in its ability to grant special use permits, however, by standards contained in the zoning law. Some of the limitations are: (1) that the location, size, and character of the use will be in harmony with and conform to the appropriate and orderly general development of the town; (2) that the Board's decision to grant a special use permit must be in accordance with the comprehensive plan; (3) that the Board's decision must be made with reasonable consideration of the character of the district; (4) the Board must give weight to the fact that the proposed special use will not depreciate the value of the property in the neighborhood; and (5) that the use will not hinder or discourage the appropriate development and use of the property in the neighborhood. These guidelines allow special uses without disrupting the character of the neighborhood in which they are established. The board would apply them when reviewing an application for a special use permit.
Local legislatures achieve a degree of flexibility by adding special uses to the types of land uses otherwise permitted in zoning districts. At its inception, zoning was justified on the ground that the strict separation of uses was in the public interest and promoted the public health, safety, and welfare. Rigid use separation, however, would exclude a variety of land uses historically associated with one another, such as the church in a residential neighborhood, or gasoline station in a neighborhood retail district. By allowing special uses, subject to conditions, the legislature allows a diversity of compatible uses while insuring that surrounding properties are protected from negative impacts in particular instances.
A variety of such special uses may be permitted in various zoning districts. In residential zones these often include adult homes, professional offices, group homes, swimming pools, nursing homes, and day care centers. In commercial zones these may include drive-in establishments, video arcades, marinas, shopping centers, gas stations, and convenience stores. When different uses can be made compatible with principal, as-of-right uses by the imposition of conditions, they are often permitted as special uses. Once a special use permit has been issued, it is not limited to the applicant, but affixes to and runs with, the ownership of the land.
SPECIAL USE PERMIT AND VARIANCE DISTINGUISHED
Variances
were discussed in an earlier tutorial in this series. A variance is a device
that permits a property owner to do something on the land that is prohibited by
the zoning law. Variances are awarded to avoid practical difficulties or
unnecessary hardships in individual cases. The standards for issuing use and area variances are specified in the
state enabling acts. "A
variance authorizes a property owner to use property in a manner forbidden by
the zoning law while a [special use permit] allows the property owner to put
his property to a use expressly permitted by the law." Matter of North
Shore Steak House v. Board of Appeals of Thomaston (1972). Special uses are
specifically permitted under certain circumstances specified by the local
legislature in the zoning law. This amounts to a legislative finding that the
use permitted is generally harmonious with neighborhood character and ought to
be allowed.
Local boards must use the correct
standard when evaluating land use applications. One common error boards make is
confusing special use permits and variances. The following case illustrates
this mistake.
The Village
of Thomastown created a twenty-five-foot buffer
zone between zoning districts to accommodate owners of lots divided by zoning district boundary lines.
The zoning law of the Village
allowed these owners to request a special use permit from the zoning board of
appeals to carry the use allowed in either zoning district twenty-five feet
into the other.
The owner of a lot occupied by a restaurant, which extended north into a single-family residential zone, applied to the board for a special use permit to pave twenty-five feet of the lot for parking associated with the restaurant. The owner also asked for a use variance in order to extend the parking farther than twenty-five feet into the single-family zoned portion of its lot.
After a review of the matter, the zoning board of appeals rejected both the application for the special use permit and the variance because they were "not in harmony with the general purpose and intent of the zoning plan." In reaching this conclusion, the board cited the same grounds for denying both the special use permit and the variance: that the premises were not unique, that the hardship was self-created, and that the use would have an adverse effect on the adjoining property. The Court of Appeals reversed the zoning board of appeals' denial of the special use permit and used the occasion to explain the critical difference between a variance and a special use permit:
"The denial of the [special use permit], based on factual findings used to support denial of the variance, ignores the fundamental difference between a variance and a [special use permit]. A variance is an authority to a property owner to use property in a manner forbidden by the ordinance while a special use permit allows the property owner to put his property to a use expressly permitted by the ordinance. The inclusion of the permitted use in the ordinance 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. [citations omitted] Denial of the permit on the ground that the extension of the parking lot twenty-five feet into the residential zone is 'not… in harmony with the general purpose and intent of the zoning plan' is, thus, patently inconsistent." Matter of North Shore Steak House v. Board of Appeals of Thomaston (1972).
SPECIAL USE PERMITS AND LOCAL ADMINISTRATION
The local legislature has the inherent power to decide how special use permits are to be issued and may, if it chooses, retain some or all special use permit review and approval authority.
In
Zeifman v. Board of Trustees of the Village of Great Neck (1963), it was
held that the legislature has the inherent power to retain special use permit
authority. Where the legislative body retains special use permit issuance
authority, there need not be standards set forth that guide and limit its
discretion. As the legislative body, a legislature can "legislate"
standards on a case-by-case basis. Even where standards are included, they do
not limit the legislature. It may apply additional standards to particular
applications in its legislative capacity. The legislature, however, must not
act capriciously. It may not apply different standards to similarly situated
properties or withhold a permit for reasons not related to the public health,
safety, and welfare, or for reasons that are contrary to the evidence on the record.
In Green Point Savings
Bank v. Board of Zoning Appeals of Town of Hempstead (1939) and Larkin
Co. v. Schwab (1926), the courts held that when the legislature is the
permit issuing board, standards need not be contained in the law for the
special use permit provisions to be valid. See also Cummings v. Town
Board of North Castle (1984) where the Court of Appeals held that
"even if the ordinance sets forth standards, it [the legislature] has not
divested itself of the power of further regulation [citations omitted], unless
the standards expressed purport to be so complete or exclusive as to preclude
the Board from considering other factors without amendment of the zoning
ordinance".
Decisions made on special use permits must
have a rational basis. Where the legislative body heard no expert testimony or
scientific evidence, its denial of a permit was reversed where it was shown
that the subject property would produce no greater noise, traffic, and fumes
than as-of-right uses allowed by the zoning in the same district. J.P.M.
Properties, Inc. v. Town of Oyster Bay (1994).
ADMINISTRATION BY OTHER BODIES
Where the local legislature decides not to
review applications for special permits, it is empowered to authorize the
planning board or other administrative body, such as the zoning board of
appeals, to issue special use permits. The legislature must adopt standards to
guide the issuance of special use permits by an administrative body, but those
standards may be fairly general in scope. In an earlier example, it was noted
that the Town Board of Patterson authorized its zoning board of appeals to
issue special use permits.
Basing Decisions on Standards in the
Regulations
Unless
the legislative body retains special use permit authority, the zoning law must
contain reasonably clear standards to guide the reviewing board in determining
whether to grant a special use permit. These standards are of critical
importance. If an applicant can prove that it can meet these standards, the
permit must be issued. When the standards established by the legislature are
met, it is not within the administrative body's power to determine that the
project will be detrimental to the neighborhood and the permit denied.
In North Shore Equities,
Inc. v. Fritts (1981), the zoning law permitted a four family apartment
building in residential and commercial zones if the zoning board of appeals
granted a special use permit. The board denied the applicant's request for the
permit, but the court found that the record showed the applicant had complied
with the special use standards. Since no proof on the record contravened the
applicant's experts, there was insufficient evidence to support a decision to
deny the application. The denial by the zoning board of appeals was annulled
and the application was granted.
There are several cases in New York where courts have invalidated the special use permit provisions of a local zoning law because the standards were too broad and gave the reviewing board unrestricted discretion to approve or reject applications for permits.
To
avoid lawsuits that challenge the adequacy of standards in a special use permit
law, legislatures should include ample guidelines in the law for the reviewing
agency to follow. In Little v. Young (1949), it was held that the
failure of the town to prescribe standards for the zoning board of appeals to
follow in granting special use permits invalidated the board's power to review.
When delegating special permit authority to an administrative body, the legislature must adopt standards to guide the body in reviewing, conditioning, and approving special uses. These standards, for example, may require that gasoline stations and drive-in establishments provide adequate traffic safety improvements, that professional home offices provide adequate parking and landscape buffering, or that shopping centers provide adequate storm drainage and lighting controls to protect surrounding areas.
Standards included in the zoning law must alone serve as the basis for any decision to deny a permit by an administrative body. Where a special use permit is denied based on traffic dangers for example, the denial could be reversed if the local legislature did not authorize the administrative board to consider the traffic impacts of a proposed special use. Denial of a special use permit because of traffic impacts could also be reversed where there was no evidence on the record showing that the proposed use would create greater traffic than as-of-right uses allowed in the neighborhood under the zoning law.
Permit conditions are enforced through local administrative procedures. Once a condition is imposed on a local land use approval, it must be complied with before the local building inspector or department issues a building permit. If the condition is one that is to be met during construction, its terms must be complied with before the construction is complete and local authorities grant a certificate of occupancy.
The purpose of imposing a condition on the approval
of a land use permit is to balance the owner's interest in developing the land
and the community's interest in being protected from any adverse impacts from
that development. Conditions are imposed to minimize any adverse impact of the
proposed use on the neighborhood or community, and as a means of meeting the
standards contained in the zoning law that special uses are to meet.
o Conditions attached to any special use permit approval must meet several criteria:
o Conditions must be based on standards in the law.
o Conditions must be reasonable.
o Conditions must be directly related and incidental to the proposed use.
o Conditions must be stated in terms that are sufficiently clear and definite.
o Conditions must have a factual basis.
LIMITATIONS ON THE IMPOSITION OF CONDITIONS
The authority to impose conditions on the issuance of a special use permit is expressly delegated to local governments by statute. However, this authority is not without limits. The statute states that the conditions must be "reasonable" and "directly related to and incidental to the proposed use of the property." A number of cases have also held that conditions must be incidental and related to the proposed use of the property. See Conmar Bldrs. v. Board of Appeals (1964); Oakwood Is. Yacht Club v. Board of Appeals of the City of New Rochelle (1961); Pearson v. Shoemaker (1960).
Bernstein v. Bd. of
Appeals, Village of Matinecock (1969), held that conditions imposed on a
special use permit "cannot go beyond the ordinance, which is the source of
the board's power." The power to impose conditions is not unlimited, but
must be based on facts in the record and criteria found in the law.
Any
condition imposed on an applicant for a special use permit must be imposed to
achieve one or more of the standards contained in the special use permit
provisions. If the permit is to be conditioned or denied, the decision to deny
or impose conditions must be made for the purpose of enforcing the articulated
standards.
In Holmes & Murphy,
Inc. v. Bush (1958), the court invalidated the denial of a special use
permit by the zoning board of appeals. The landowner applied for a special use
permit in an industrial district. The law permitted the use unless it
constituted a "trade, industry or use which is or may be injurious,
offensive or noxious by reason of vibration or noise or by the emission of
odor, stenches, dust, smoke or gas." The zoning board of appeals denied
the permit because its members suspected that the use would require the use of
large trucks.
Although the landowner would have to comply with the local regulation of trucks contained elsewhere in the municipal code, this was not a proper basis for the board to deny the special use permit. The court concluded that it was improper for the village to deny a special use permit on the grounds that excessively heavy trucks would be used on site because no such consideration was contained in the standards found in the provisions of the law related to special use permits.
Often, but not
always, conditions that limit the details of operation of a business are
rejected as not relating to the proposed use of the land. For example, when a
use variance for a real estate office in a residential district was conditioned
on the requirement that it be used only in conjunction with the applicant's
personal real estate business, that condition was set aside as unrelated to the
impacts of the use proposed. It was strictly personal in nature. When the
details of the operation of a nursery school, including the age of students,
hours of school operation, and the number of hours to be worked by a caretaker,
were the subjects of a condition imposed on the granting of a variance, the
court determined that these details were unrelated to zoning matters and inappropriate.
Bernstein v. Village of Matinecock Board of Appeals (1969). These same
limitations apply to conditions imposed on special use permits.
However, a condition limiting the period of operation of the school from September through June was deemed valid because the definition of a private school in the law contained a similar limitation. Note, however, that conditions that intrude upon the teaching functions of the school, such as restricting times of day the school can operate and its summer operations are not permitted. In another case, a condition that limited an automobile repair shop from keeping more than two non-employee vehicles outside the shop during working hours was sustained as related to the use of the land proposed by the owner's application.
In Old Country Burgers
v. Town of Oyster Bay (1990), the court annulled conditions that dealt with
the manner of a business' operation. The use of the land as a drive-through
restaurant was allowed in the law as a specially permitted use. The board approved
the proposed use but imposed meal-time restrictions on the operation of drive
through windows. The court stated that since there were no studies or other
evidence that showed the potential for traffic problems, the restriction was
without basis. Instead, the condition amounted to an impermissible regulation
of the manner of operation rather than an attempt to minimize adverse affects.
The standards governing the granting of special use permits, as with the approval of subdivision and site plan applications, are contained in the zoning law or other regulations adopted by the local legislature. Before granting its approval of the application, the reviewing board must insure that the standards contained in the law or other regulations are complied with by the proposed development. Frequently, approval is conditioned on the developer agreeing to modify the design of the development or add site features to meet the underlying standards adopted by the legislature. These conditions are appropriate when their purpose is to insure the standards are complied with.
Although the imposition of
conditions is clearly within the authority of the governing body, the
conditions must serve to achieve the standards contained in the zoning law or
they can be declared invalid. Courts also invalidate a condition when there is
no evidence in the record justifying its imposition, or when the condition is
unreasonable or is not related to the impacts of the proposed development.
The Application
and its Review
A landowner makes the decision to apply for a
special use permit. The application must be submitted to the local
administrative body that is delegated review and approval 
authority.
The applicant should be familiar with the standards that are contained in the law that give the reviewing body the authority to deny or condition the permit if the standards are not met by the proposed project. If a proposed project meets these standards, the special use permit must be issued. If not, it may be subject to conditions imposed to meet those standards or denied if the project cannot meet the standards even when conditions are imposed.
Initially, the burden is on the applicant to
demonstrate that the standards can be met. This can be done by completing
traffic studies, presenting landscape plans, and submitting architect's
renderings of the completed project as seen from relevant points. Where such
evidence demonstrates that the proposed project complies with the standards,
the reviewing board must approve the application unless it can demonstrate that
the applicant's evidence is faulty or that it has found additional evidence
that rebuts the information submitted by the applicant. If the reviewing board
imposes a condition or denies an application without evidence that supports
that action, it runs the risk of reversal in court.
The
reviewing board's decision on the special use permit must be rendered within
sixty-two days of the date of the public
hearing. Any decision of the reviewing board must be made on evidence found
in the record of its proceedings. That decision must be filed in the office of
the municipal clerk within five
business days and a copy mailed to the applicant.
County/Regional
Planning Agency
In certain instances, the reviewing board must submit special use permits to a county or regional planning agency. Such referral must be sent at least ten days before the public hearing on the special use permit, accompanied by a full statement of the matter under consideration.
General Municipal Law § 239-m
requires certain special use permits to be submitted to the county or regional
planning agency for review and comment. Failure to provide the notice and referral required by General
Municipal Law § 239-m amounts to a jurisdictional defect in
the responsible agency's ultimate action on the permit application. Old Dock
Associates v. Sullivan (1989). Any permit awarded without such referral may
be annulled by a court.
Certain matters must be referred to the county or regional planning agency. Proposed special use permit applications must be referred when they affect property within 500 feet of (a) a city, town, or village boundary; (b) the boundary of an existing or proposed county or state park or recreation area; (c) the right-of-way of any existing or proposed county or state parkway, thruway, expressway, road, or highway; (d) the right-of-way of any stream or drainage owned by the county; (e) the boundary of any county or state owned land on which a public building or institution is situated; or (e) the boundary of a farm operating under an agricultural district governed by the Agriculture and Markets Law.
The
county must make its recommendation within thirty days. If the county
recommends modification or disapproval, the board may accept and implement the
recommendation, or it may vote to override the county. A majority plus one of
the board's members is required in order to override the county's
recommendation.
The provisions of the State Environmental
Quality Review Act (SEQRA), which
requires public agencies to consider the impacts of their land use decisions on
the environment, must also be complied
with by any special use permit reviewing board. Where the approval of a special
use permit may have a potentially significant adverse impact on the
environment, the extensive procedural requirements and the extended timetable
of SEQRA must be followed and coordinated with other requirements for the
issuance of a special use permit. Normally the administrative body that reviews
the application for the special use permit will be designated the lead agency charged with the legal
responsibility for determining whether the proposed project may have a
substantial negative impact on the environment and, if so, complying with the
extensive requirements of SEQRA.
The rules regulating the issuance of special use permits are defined carefully by state statutes. These statutes define a special use permit, empower the local legislative body to authorize a local agency to grant such permits, allow conditions to be attached to them, authorize the waiver of permit requirements in appropriate circumstances, require public hearings to be held before special use permits are granted, require compliance with environmental review provisions of state law, provide for notice to county and regional planning agencies, require the filing of decisions on special use permits, and allow any person aggrieved by the board's decision to petition the courts to review it.
The
following list generally outlines the procedural steps followed for special use
permit applications.
- Landowner makes application for special use permit to the authorized local board, which may be the local legislature itself, the planning board, zoning board of appeals, or other local administrative body.
- If required, an environmental review form is submitted and the State Environmental Quality Review Act (SEQRA) must be complied with before the application is deemed complete (see tutorial titled "Environmental Review").
- Notice may be required to be given to the county or regional planning board for its review under General Municipal Law § 239-m.
- The reviewing board must hold a public hearing within sixty-two days of the day an application for a special use permit is received and deemed complete. Public notice of the hearing must be published at least five days before it is held.
- The reviewing board must decide upon the application within sixty-two days after the hearing.
- The authorized board must file the decision with the municipal clerk within five days of its decision.
Where special use permit authority is delegated to a local administrative body, the legislature must establish standards to guide the board in reviewing a permit application. Although the board may impose reasonable conditions on the permit approval, the conditions imposed "cannot go beyond the ordinance, which is the source of the Board's power." As with any land use decision, conditions imposed on a special use permit approval must be directly related and incidental to the proposed use of the property, and the conditions must be sufficiently clear and definite to remove any doubt as to the allowed use.
Landowners or neighbors may challenge a decision of a local board to award, deny, or condition a special use permit. The following is a list of some of the challenges that aggrieved parties may bring against administrative bodies for their decisions on special use permits:
- The law is invalid because it does not contain standards for the board to follow.
- The administrative body based its decision on standards not contained in the law.
- The impact of a special permitted use that was denied is no greater than as-of-right uses permitted on the property under the zoning law.
- The administrative body did not base its decision on facts in the record.
- Conditions imposed are not incidental and related to the proposed use of the property or do not advance the standards set in the law.
1. John R. Nolon, Well Grounded, Shaping the Destiny of the Empire State, Local Land Use Law and Practice, Chapter 3.
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