Agenda - Planning Commission - 05/02/2002

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248 Page 6 -- April 10, 2002 . Special Use Permits -- Drive-through restaurant permit denied Lower court annuls decision NEW YORK (02/25/02) -- Mian Enterprises applied for a special use permit and an area variance that would enable it to erect a two-lane drive-thru restau- rant. The Zoning Board of Appeals denied the applications, and the petitioner appealed. The state's supreme court granted the petition and annulled the decision. The court also directed the board to ~ant the special use permit and variances. The case was appealed. DECISION: Reversed. The board's did not have to grant the special use permit. The board's decision was rationally based and supported by substantial evidence, even though there were differing opinions offered by expert wit- nesses with regard to the effects on the surrounding community to be caused by the proposed restaurant. Citation: Matter of Mian Enterprises Inc., v. Easa, Supreme Court of New York, App. Div., 2nd Dept., 2000-1100! (2002). see also: Matter of Twin County Recycling Corp. v. Yevoli, 688 N.E. 2d 50]. Nonconforming Use -- Sand and gravel operation expanded Company claims it is still a nonconforming use MASSACHUSETTS (2/28/02) -- Since 1961., a I08-acre parcel of land was used by OS&G for a sand- and gray. el-removal operation. Up until' 1994, the several owners who operated the business, used the fa. cji/fy on a seasonal basis and removed about 1,500 cubic yards 'of material. In I989, the town amended its zoning by-law and adopted a rule requiring a special permit for the removal of soil in amounts exceeding 1,500 cubic yards. Since 1989, a number of residential homes were constructed. The owners com- plained about the truck traffic, dust, and other inconveniences coming from the sand and gavel operation. . By 1996, OS&G operated the business on a year-round basis and increased production to 50,000 to 100,000 cubic yards each year. After repeated infor- mal and formal warnings were issued, the zoning enforcement officer issued a. cease-and-desist order. OS&G appealed the order, and the board affirmed. OS&G sued in the land court, seeking a declaration that the current use was a protected exercise of a nonconforming use under statute and there was no requirement to acquire a special permit. The land court affirmed the board's decision and determined OS&G's use of the property constituted a "change in the quality and character," as well as the d%rree, of the prior nonconforrmng use, given the increased area ofremoval I I I I I I I I I I I I I I I I I I I