Capriola v. Wright

• Decision Date: 18 May 2010
• Citation: 900 N.Y.S.2d 754,73 A.D.3d 1043
• Parties: In the Matter of Pastor Jeanette CAPRIOLA, doing business as Walk in Love for Jesus Church, appellant, v. Gerald G. WRIGHT, et al., respondents.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 754

73 A.D.3d 1043

In the Matter of Pastor Jeanette CAPRIOLA, doing business as Walk in Love for Jesus Church, appellant,

v.Gerald G. WRIGHT, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

May 18, 2010.

Forchelli, Curto, Deegan, Schwartz, Mineo, Cohn & Terrana, LLP, Uniondale, N.Y. (William S. Cohn of counsel), for appellant.

Joseph J. Ra, Town Attorney, Hempstead, N.Y. (Charles S. Kovit of counsel), for respondents.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, DANIEL D. ANGIOLILLO, and PLUMMER E. LOTT, JJ.

In a proceeding pursuant to CPLR article 78 to review a determination of the Town of Hempstead Board of Appeals, dated July 16, 2008, which, after a hearing, denied the petitioner's application, inter alia, for a special exception permit and an off-street parking variance, the appeal is from a judgment of the Supreme Court, Nassau County (Spinola, J.), entered April 21, 2009, which, in effect, denied the petition 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 Town of Hempstead Board of Appeals for a new determination in accordance herewith.

Walk in Love for Jesus Church, Inc., is the owner of certain premises in North Bellmore. The premises are located in a residential zoning district, but since 2004, religious services have been held thereon. The Building Zone Ordinance of the Town of Hempstead (hereinafter the BZO) expressly permits religious uses in residential districts ( see BZO §§ 82, 83[C], 399[B] ). However, in 2007, the BZO was amended to require a "special exception permit" for the establishment or expansion of areligious use in any zoning district (BZO § 401 [A], formerly § 388[A] ). The Town of Hempstead Board of Appeals (hereinafter the Board) may grant the permit if the proposed use will not cause "significant negative impacts" on the "public's health, safety, welfare and morals," including, inter alia, "significant traffic congestion" or a "substantial adverse effect on surrounding property values" (BZO § 402[D],[E] [1], formerly § 389[D],[E][1] ). The Board may deny the permit upon a finding of significant negative impacts unless such impacts "may be substantially mitigated by imposition of appropriate conditions that do not, by their cost, magnitude or volume, operate indirectly to exclude the use altogether" (BZO § 402[E][2],[3], formerly § 389[E][2],[3] ).

Pastor Jeanette Capriola, doing business as Walk in Love for Jesus Church (hereinafter the petitioner), filed an application for a special exception permit so that religious services could continue to be held on the premises. The petitioner also sought area variances for off-street parking and the installation of a sign. As a condition to the grant of the application, the petitioner proposed that only 46 people would be allowed to enter the sanctuary, and while religious services were being conducted in the sanctuary, that no other area of the premises would be used. After a public hearing, the Board denied the petitioner's application in its entirety. The petitioner commenced a proceeding pursuant to CPLR article 78 to annul the Board's determination. The Supreme Court denied the petition, finding that the Board's determination was rational, and not arbitrary and capricious. We reverse.

Contrary to the Board's determination, the petitioner has standing to bring an application for a special exception permit. Section 400 (formerly section 387) of the BZO defines "religious use" as "[a] house of worship or other place regularlyand primarily devoted to religious practice" (BZO § 400). This Court has defined religious use as "conduct with a religious purpose, the determination of which focuses on the proposed use itself, not the religious nature of the organization, and in 'each case ultimately rests upon its own facts' " ( McGann v. Incorporated Vil. of Old Westbury, 293 A.D.2d 581, 583, 741 N.Y.S.2d 75, quoting Matter of Community Synagogue v. Bates, 1 N.Y.2d 445, 453, 154 N.Y.S.2d 15, 136 N.E.2d 488). Here, the petitioner proposes to use the premises as a house of worship, and to conduct regular religious services on the premises. Thus, the petitioner's application proposes a religious use. This conclusion is not changed by the fact that the certificate of incorporation for Walk in Love for Jesus, Inc., indicated that it was a charitable corporation, rather than a religious one,since the determination of "religious use" focuses on the proposed use itself, not the religious nature of the organization ( see McGann v. Incorporated Vil. of Old Westbury, 293 A.D.2d at 583, 741 N.Y.S.2d 75). In any event, we note that the certificate of incorporation had been amended prior to the Board's determination to provide that Walk in Love for Jesus Church, Inc., is a religious corporation with the stated purpose of establishing and operating a church.

Furthermore, the Board's unconditional denial of the petitioner's application was arbitrary and capricious. Unlike a use variance, a "special exception allows the property owner to put his property to a use expressly permitted by the ordinance ... subject only to conditions attached to its use to minimize its impact on the surrounding area" ( Matter of North Shore Steak House...