Apr 3, 2019 | Legal Letter presented to the Livingston Planning Board – Attorney Kenneth J. Dow, Representing landowners Betsy and Al Scott, and Cotswold Holdings

March 27, 2019

THE LAW OFFICE OF KENNETH J. DOW

Town of Livingston Planning Board

County Route 19

Livingston, NY 12441

Dear Chairman Schmidt and Members of the Planning Board:

I write on behalf of abutting landowners Betsy and Al Scott, and Cotswold Holdings LLC:

Special uses

I begin with a question: why did the Town Board not classify “gas station” as a permitted use in the C-1 zoning district? It can only be that the Town Board determined, and established as the Town policy, that not every proposal for a gas station in the C-1 district should be allowed. In Livingston, before a gas station can be approved for a special use permit in the C-1 district, the project must prove its case.

The Town of Livingston has expressly enacted into law the requirement that if a gas station proposal in the C-1 district does not demonstrate and establish its conformity to a substantial set of requirements set out in the Zoning Code, it must be denied outright. The legislative body of the Town has already established the governing law, which describes exactly how to distinguish an approvable gas station from one that must be denied. The Planning Board’sauthority and duty is to dispassionately apply that law. Personal preference must be set aside.

New York Courts have very clearly stated that compliance with the applicable local codeprovisions is required in order to obtain a special use permit: “entitlement to a special exception permit is not a matter of right. Compliance with local ordinance standards must be shown beforea special exception permit may be granted.” (Citations omitted). Matter of Franklin Square Donut Sys. LLC v. Wright, 63 A.D.3d 927 (2nd Dept., 2009). The Court of Appeals—NewYork’s highest Court—held that “The stated standards in the ordinance guiding the board's consideration of special exception applications condition availability of a special exception, andcompliance with those standards must be shown before any exception can be secured.”Matter of Tandem Holding Corp. v. Board of Zoning Appeals of Town of Hempstead, 43 N.Y.2d 801 (1977). (Emphasis added).

It is very clear that when the law of the Town of Livingston is applied to this gas station project in this location, the requirements of the zoning code are not met, and under the law of the State of New York, the special use permit cannot be approved.

The governing law—the Zoning Code of the Town of Livingston

The most fundamental matter in determining whether to approve or deny a special use permit is the specific terms, conditions, and requirements set out in the applicable local zoning code. Zoning code vary from town to town—sometimes dramatically. But the central question is“what does the Town of Livingston’s code say?” Whatever it says, those terms control.

Section 6.6 of the Livingston Zoning Codes states as follow: “All uses listed in the Schedule of Permitted Uses as requiring a special permit are declared to possess characteristicsof such unique and distinct form that each specific use shall be considered as an individual case, and they shall conform to, but not be limited to, the following general requirements as well as the pertinent supplementary regulations.

12. Planning Board Report, Considerations and Scope - The Planning Board, after public notice and hearing, may approve the issuance of a special permit provided that it shall find that all of the following conditions and standards have been met:

  1. The location and size of the use, the nature and intensity of the operations involved in or conducted in connection with it, the size of the site in relation to it, and the location of the site with respect to streets giving access to it are such that it will be in harmony with the appropriate and orderly development of the district in which it is located.

  2. The location, nature and height of buildings, walls and fences and the nature and extent of the landscaping on the site are such that the use will not hinder or discourage the appropriate development and use of adjacent land and buildings.

  3. Operations in connection with any special use will not be offensive, potentially dangerous, destructive of property values and basic environmental characteristics, or detrimental to the total interest of the Town and will not be more objectionable to nearby properties by reason of noise, fumes, vibration, electromagnetic radiation,flashing of lights and similar nuisance conditions than would be the operations of any permitted use not requiring a special permit.

  4. The use conforms in all respects to all the regulations of this law and particularly to the specific supplementary regulations that may apply to such use.

    It is important to emphasize who carries the burden of proof here. As stated by the

Appellate Division in L & M Realty v. Village of Millbrook Planning Bd., “compliance with ordinance standards must be shown before a special permit can be granted (citations omitted). The petitioner failed to satisfy the threshold standards necessary for the special permit, and that permit was properly denied.” L & M Realty v. Village of Millbrook Planning Bd., 207 A.D.2d 346 (2nd Dept., 1994). (Emphasis added). It is not the neighbors who need to show that the project fails to satisfy the Code; rather, the applicant and the Board have the legal burden of showing that it does satisfy the Code. Here, the Livingston Code directs that “The Planning Board...may approve the issuance of a special permit provided that it shall find that all[specified] conditions and standards have been met.” Under the governing Livingston Code, theprerequisite for approval is affirmatively finding that all conditions and standards have been met. This is a requirement that this project cannot meet.

The Code is very clear on another point: the word “all.” The Board may approve a specialpermit only if it finds that all of the listed conditions and standards are met. The standards in (a.), (b.), and (d.) have not been shown to have been met, which they must be. However, the clearest failure of this proposed project to comply with the Livingston law is seen in (c.).

Subdivision 12.(c.) of section 6.6 of the Livingston Code contains at least two distinct grounds that mandate a denial of this application: one is the impact on surrounding properties,evaluated on its own; the other is the impact on nearby properties evaluated in comparison to permitted uses.

Based upon the statements and submissions of Lere Visagie, the owner of Rockridge Stud; and the expert submissions of appraiser Steven Clark, stating that the gasoline filling station “would be destructive to the Cotswold Holdings land property value,” and hydrogeologist Paul Rubin, there is uncontroverted expert evidence that this project—as proposed in this location—would be “offensive,” “potentially dangerous,” and “destructive of property values and basic environmental characteristics.” I refer the Board to their submissionsfor the factual and technical details, but the conclusion is plain. This project is in violation of 12.(c.), as referenced above. It is not necessary to go any further to reach the unavoidable conclusion: this special use application must be denied.

If a project fails the conditions as described above, as this one fails, denial is mandatory. But in the event a project satisfies the conditions in the respect addressed above, it must still becompared to the impacts of all permitted uses not requiring a special permit within the zoning district and be shown to be no more objectionable than any of them. Again, it is the burden of the applicant and Board to show that the proposed project is not more objectionable than the permitted uses. If that is not shown, then denial is again required.

C-1 District Permitted Uses not requiring a special permit (complete list).

Accessory Apartments 

Accessory Use/Building Agriculture, excluding animals 

Antique shop

Auction hall/Flea market
Bank
Building supply
Commercial Event Venue
Commercial greenhouse and plant nursery, including office and sales yard Community pole

Dwelling, two family Dwelling, single family Equipment rental or Sales yard Farm greenhouse
Farm stand
Fence
Furniture sales
Garage, Private
Home occupations  (HO1, HO2)

Laundry/dry cleaning
Manufactured (homes) 2 sections or more
Restaurant
Retail business or service not otherwise specified and not otherwise prohibited in this chapter Satellite dishes
Special Event
Swimming pool, private
Swimming pool, public

The Livingston Code expressly states that a project obtaining a special use permit must not be more objectionable to nearby properties than the permitted uses in the zoning district (which are listed above, in their entirety) with respect to noise, fumes, vibration, electromagnetic radiation, flashing of lights and similar nuisance conditions. The proposed gas station fails to meet the Code requirements in this respect, also, which, again, leads to a mandated denial.

It is plainly untrue that the proposal—in its proposed location, configuration, size, and scale—is no more objectionable to nearby properties than the permitted uses. Most of the permitted uses in the C-1 district are extremely unobtrusive, with very low impacts of any kind. Of the fairly small number that would be expected to have some impacts upon surrounding properties, their very natures or, in some cases, their definitions, ensure that none approaches the level of this proposed gas station in terms of the relevant nuisance impacts on the adjacent property.

Because the main nearby property is a horse breeding operation and has been for nearly half a century, the nuisance aspects of the different possible uses need to be evaluated with respect to that. Under the standard set out in the Code—the extent to which a use is objectionable to nearby properties—the proposed gas station would be particularly offensive. The letter submitted by Lere Visagie addresses the special incompatibility and hazards to the horse operation that arise from this gas station proposal. Crucial elements that set it apart from all permitted uses are its 24-hour a day operation and the intensity and character of the activity it would generate. This project means truck noise, braking, fumes, and headlights shining on the pastures as the vehicles exit the gas station at all times, around the clock. Very plainly, nopermitted use is a magnet for a continual stream of around-the-clock vehicular traffic in any way comparable to this proposal. The vehicular noise, fumes, and lights generated by this proposal are far greater, and create a substantially greater nuisance to the abutting horse farm property, than any permitted use not requiring a special permit. An additional aspect of the gas station that sets it apart from all permitted uses is the hazard it presents to water resources.

Some of the special impacts of a 24-hour gas station might not matter if the adjacent properties consisted of forest or agricultural crops, or businesses or industries that operated during daytime business hours. But in this location next to a thriving horse farm, a gas station—especially one with multiple diesel pumps apparently designed to appeal to heavy trucks—is particularly objectionable.

The problem for this project is not only that it cannot be shown that the proposal is less objectionable to nearby properties than permitted uses (which alone requires the denial of the permit); it is that the opposite is true. In fact and as outlined in the letters of Lere Visagie and appraiser Stephen Clark (“would also have a far more detrimental effect upon such propertyvalue than would a permitted use”), this proposed gas station project is plainly more impactful upon nearby properties than the permitted uses in the District. On this basis, too, the special use permit must be denied.

The matter before the Planning Board is not a vote of preferences or desires. It is a finding—a determination. Here, the framework for making that determination is very explicit, as set out in section 6.6. A special permit may be granted only “provided that it shall find that all of the following conditions and standards have been met.” To each question, each membermust form a conclusion: they may conclude “yes,” “no” or “I’m not sure or the answer is uncertain.” Only if they can conclude a definitive “yes” to each and every requirement set out in the Code is the granting of a permit proper and lawful. The law of the Town of Livingston places an affirmative duty on the Planning Board to establish that all of these requirements are truly met, or the Board cannot lawfully grant a conditional use permit for the proposed project.

It is possible that there could be a scale or design of a project that would comply with the requirements of the Zoning Code, and for which such compliance could be established and demonstrated, which would warrant approval. But this proposal, in its current size and configuration, is not that project. It is obviously not an inherent aspect of a gas station to have 16 pumps plus 5 diesel pumps. Importantly, however, the New York Court of Appeals has held that mitigation of impacts is not always capable of making a use suitable.1 Such may be the case here. It seems that for this project, within the constraints of the proposed parcel site, the central problem is an irresolvable one of placement in immediate proximity to a thriving horse farm, resulting in irresolvable violations of the requirements of the Livingston Code.

As the Board well knows, the Board is not here to vote on whether they like or dislike the project—personal feelings or preferences have no place in rendering a determination of this kind. The law makes clear that a board cannot deny a zoning permit application merely because members of the public dislike it. In the same way, a board also cannot approve a zoning permit application because the public or the board favors the proposal. The board’s duty, under law, isto evaluate the project against the standards set out it the governing local code, and make afinding as to the project’s compliance with the Code requirements. Then, the chips fall where they may.

Under the controlling law of the Livingston Code, the facts on the record make the required outcome clear. Whether one personally favors or opposes the idea of the project, the law of the Town of Livingston is the determining matter here, and under its clear and express provisions, a special permit for this gas station proposal cannot be granted.

Sincerely,

Kenneth J. Dow

____________________

1 See, Matter of Tandem Holding Corp. v. Board of Zoning Appeals of Town of Hempstead, 43 N.Y.2d 801 (1977);(“It does not follow, however, that requests for special exceptions must always be granted subject only to the imposition of reasonable conditions.”)