C.B.H. Properties, Inc. v. Rose

• Decision Date: 20 June 1994
• Citation: 613 N.Y.S.2d 913,205 A.D.2d 686
• Parties: In the Matter of C.B.H. PROPERTIES, INC., Appellant, v. Henry W. ROSE, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 913

613 N.Y.S.2d 913

205 A.D.2d 686

In the Matter of C.B.H. PROPERTIES, INC., Appellant, v. Henry W. ROSE, etc., et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

June 20, 1994.

Cohn, Rosenthal & Avrutine, Baldwin (Howard D. Avrutine, of counsel), for appellant.

Ronald J. Levinson, Town Atty., Hempstead (Charles S. Kovit, of counsel), for respondents.

Before THOMPSON, J.P., and ROSENBLATT, MILLER and RITTER, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Zoning Appeals of the Town of Hempstead, dated October 24, 1990, which, after a hearing, (1) denied the petitioner's application to renew a special permit to operate a cabaret, and (2) dismissed the petitioner's application to renew an off-street parking variance in connection therewith, the appeal is from a judgment of the Supreme Court, Nassau County (Lockman, J.), entered November 19, 1992, which confirmed the determination and dismissed the proceeding.

ORDERED that the judgment is reversed, on the law, without costs or disbursements, the petition is granted, the determination is annulled, and the matter is remitted to the Board of Zoning Appeals of the Town of Hempstead for the purposes of (1) issuing the special exception permit requested by the petitioner, subject to appropriate conditions and restrictions as the Board of Zoning Appeals of the Town of Hempstead may find necessary, and (2) determining on the merits the petitioner's renewal application with respect to the off-street parking variance.

Contrary to the determination of the Supreme Court, we find that the contemplated use was in conformance with the statutory preconditions for issuance of special exception permits, and the denial of the petitioner's application for renewal of its permit was not supported by "substantial evidence".

The classification of a "special permit" or "special exception" is tantamount to a legislative finding that, if the special permit or exception conditions are met, the use will not adversely affect the neighborhood and the surrounding areas (see, Matter of Lee Realty Co. v. Village of Spring Val., 61 N.Y.2d 892, 474 N.Y.S.2d 475, 462 N.E.2d 1193; Matter of North Shore Steak House v. Board of Appeals of Inc., Vil. of Thomaston, 30 N.Y.2d 238, 331 N.Y.S.2d 645, 282 N.E.2d 606; Matter of C & B Realty Co. v. Town Bd. of Town of Oyster Bay, 139 A.D.2d 510, 526 N.Y.S.2d 612; Matter of Old Ct. Intl. v. Gulotta, 123 A.D.2d 634, 507 N.Y.S.2d 22). Although there is no entitlement to a special permit or exception, once the petitioner shows that the contemplated use is in conformance with the conditions imposed, the special permit or exception must be granted unless there are reasonable grounds for denying it that are supported by "substantial evidence" (see, Matter of Carrol's Dev. Corp. v. Gibson, 53 N.Y.2d 813, 439 N.Y.S.2d 921, 422 N.E.2d 581; Matter of C & A Carbone v. Holbrook, 188 A.D.2d 599, 591 N.Y.S.2d 493; Matter of Texaco Ref. & Mktg. v. Valente, 174 A.D.2d 674, 571 N.Y.S.2d 328). Moreover, while a zoning board is free to consider matters related to the public welfare in determining whether to grant or deny a special exception or permit (see, Cummings v. Town Bd. of North Castle, 62 N.Y.2d 833, 477 N.Y.S.2d 607, 466 N.E.2d 147; Matter of C & B Realty Co. v. Town Bd. of Town of Oyster Bay, supra ), it is impermissible to deny a special exception or permit solely on the basis of generalized objections and concerns of the neighboring or adjoining community expressed by members thereof, which, in effect, amount to "community pressure" (see, Matter of Lee Realty Co. v. Village of Spring Valley, supra; Matter of Texaco Ref. & Mktg. v. Valente...