Opinion
February 2, 1996
Appeal from the Supreme Court, Jefferson County, Gilbert, J.
Present — Denman, P.J., Pine, Wesley, Balio and Boehm, JJ.
Judgment unanimously reversed on the law without costs and petition dismissed. Memorandum: Petitioner commenced this proceeding to annul a determination of respondent Zoning Board of Appeals (ZBA) that granted a special use permit to Richard Hutchinson for the construction of a barn for the storage of construction equipment. The ZBA determined that the proposed use was "substantially the same" as an automobile service station or a machine and welding shop, which are permitted special uses under the Town's Zoning Ordinance. Supreme Court granted the petition and annulled the determination, concluding that the proposed use was not a special use authorized by the Zoning Ordinance and that the ZBA lacked the authority to interpret the Zoning Ordinance to include the proposed use.
After respondents took this appeal, the Town Board of the Town of Orleans amended its Zoning Ordinance to include storage buildings as a special use and to authorize the ZBA to determine whether any proposed use "substantially and practically" complies with the requirements of the Zoning Ordinance. "[W]hen a law is amended during an appeal's pendency, the law to be utilized is that in effect at the time the decision on appeal is rendered" (Matter of Baldassare v. Planning Bd., 200 A.D.2d 948, 949, quoting Matter of Willard v. Haab, 170 A.D.2d 820, 822, lv denied 78 N.Y.2d 854; see also, Matter of Dutton v. Town of Canaan, 199 A.D.2d 659, 660), unless petitioner can establish that respondents acted in bad faith and unduly delayed acting upon the application while the ordinance was changed (see, Matter of Property Developer v. Swiatek, 190 A.D.2d 1078, lv denied 82 N.Y.2d 653). There is no question that the proposed use constitutes a "storage building" and is a permitted special use under the Zoning Ordinance, as amended. Further, petitioner has failed to show that respondents acted in bad faith or that there was undue delay. Because the ZBA's grant of a special use permit was not arbitrary or capricious and is supported by substantial evidence, we dismiss the petition.