Agenda - Planning Commission - 06/01/1999

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Page 4 -- May 10, 1999 Z.B. , , Special Permit m Town denies permit for motorcycle business based on noise concerns NEW YORK (3/9/99) -- Baker started Ultimate Custom Cycle Inc., planning to sell "high-end" motorcycles. Ultimate rented a new commercial building in Greenburgh, N.Y. The building needed extensive renovations, which Ultimate wanted to com- plete in time to open for business by the beginning of the summer -- the busi- est time of the year in that industry. The town issued Ultimate a certificate of occupancy and a building permit for renovations. Construction proceeded at a "fast and expensive pace" to enable the business to open by mid-June. The property was zoned "intermediate business," which allowed retail and personal service establishments, professional offices, warehouses, public parks, and playgrounds. Motor vehicle repair and retail establishments needed a spe- cial permit. To get a special permit Ultimate had to show, among other things, that its proposed use was harmonious with the orderly development of the area. Businesses in the area included a truck rental business, a factory, a tele- phone company facility with a truck and supply lot, and a refrigeration supply company. There were also four private homes in the area. Ultimate applied for a special permit in April 1998. At a public hearing, Ultimate submitted documents showing it complied with all the special permit requiremen, ts. A neighbor expressed concern about noise levels but admitted there were already high noise levels in the area. Ultimate said it would operate only during the daytime and said nearby highways would allow customers to come to the shop without passing homes. Ultimate also promised to keep noise levels down by not allowing test drives and by prohibiting customers from revving their engines on its property. The zoning appeals board denied Ultimate's permit request, finding the proposed business wouldn't be compatible with the area because of noise levels. Ultimate commissioned a traffic study, which found its business wouldn't significantly impact the already high noise levels in the district. Based on the traffic study, Ultimate asked the board to reconsider its decision. The board refused, and Ultimate was forced to cancel its lease and to abandon its business plans. Ultimate sued the town, arguing it acted arbitrarily. According to Ultimate, the town's zoning ordinance violated its equal protection rights by allowing some businesses as a matter of right while requiring other businesses to get a special permit. The town asked the court to dismiss Ultimate's claims.' DECISION: Claims dismissed, Ultimate wasn't entitled to the special permit. The board had broad discretion to deny special permits that would impair the use, enjoyment, or value of nearby properties. The board denied Ultimate's request based on its valid concern about increased noise levels.