New York Appellate Division, Second Dept.
Burden of Proof/Special Use vs. Variance/Applicant Prevails on Appeal of Gas Station Permit Denial.  Petitioner, who owns property in a business district that recognizes gas stations as a permitted use, sought to operate a convenience store, a minor restaurant and a gas station.  After two public hearings, the town board approved the store and restaurant permits, but denied the gas station permit.  The board determined that the operation of a gas station would cause an increase in the flow of traffic.   Petitioner brought a CPLR Article 78 proceeding in the Supreme Court, Suffolk County.  The Court found that the gas station would not cause an increase in traffic, annulled the board ruling and ordered the town to issue the gas station permit.  On appeal, the Second Dept. sustained.  The Court distinguished between the burden of proof for a variance and a special permit…“Unlike a variance, a special permit does not entail a use of the property forbidden by the zoning ordinance but, instead, constitutes a recognition of a use which the ordinance permits under stated conditions (see Matter of Retail Prop. Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190, 195). Thus, the burden of proof on an applicant seeking a special permit is lighter than that required for a hardship variance (see Matter of M & V 99 Franklin Realty Corp. v Weiss, 124 AD3d 783, 784-785).”  The Court stated that the denial cannot be based solely upon community opposition and that here, there was no evidence that the gas station would cause any greater increase in traffic than the other permitted uses.  Matter of QuickChek Corp. v Town of Islip, 2018 NY Slip Op 08136, Appellate Division, Second Department, November 28, 2018.
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