Scharf v. Thaul

• Decision Date: 27 November 1978
• Citation: 65 A.D.2d 819,410 N.Y.S.2d 347
• Parties: In the Matter of Al SCHARF, Respondent, v. Elliot THAUL et al., constituting the Board of Appeals of the Village of EastHills, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 347

410 N.Y.S.2d 347

65 A.D.2d 819

In the Matter of Al SCHARF, Respondent, v. Elliot THAUL et al., constituting the Board of Appeals of the Village of EastHills, Appellants.

Supreme Court, Appellate Division, Second Department.

Nov. 27, 1978.

John F. Woog, Garden City, for appellants.

Kutner & Gurlides, Mineola (Harry H. Kutner, Jr., Mineola, of counsel), for respondent.

Before LATHAM, J. P., and SUOZZI, GULOTTA, SHAPIRO and COHALAN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Village of East Hills, dated October 24, 1977, that denied petitioner's application for a variance for a tennis court that was constructed pursuant to a special exception permit previously granted by the board, the appeal is from a judgment of the Supreme Court, Nassau County, entered May 17, 1978, which annulled the board's determination and remanded the matter to it "for a further hearing for consideration of proof on the issue of the practical difficulty and for a determination on the merits of petitioner's application."

Permission for the taking of this appeal is hereby granted by Mr. Justice SUOZZI (see Matter of North Amer. Holding Corp. v. Murdock, 6 A.D.2d 596, 599-600, 180 N.Y.S.2d 436, affd., 6 N.Y.2d 902, 190 N.Y.S.2d 708, 160 N.E.2d 926; Matter of Soros v. Board of Appeals of Vil. of Southampton, 24 A.D.2d 705, 263 N.Y.S.2d 44).

Judgment affirmed, without costs or disbursements.

Appellants are correct in asserting that they had no power to vary the detailed conditions required by the subject ordinance for the grant of a special exception permit to construct and maintain a tennis court Upon an initial application therefor (see Matter of Schroeder v. Kreuter, 206 Misc. 198, 132 N.Y.S.2d 144, affd., 284 App.Div. 972, 135 N.Y.S.2d 637, affd., 308 N.Y. 993, 127 N.E.2d 845).

Neither Seaview Ass'n of Fire Is., N.Y. v. Zoning Bd. of Appeals of Town of Brookhaven, 53 A.D.2d 605, 383 N.Y.S.2d 650, nor Matter of Fina Homes v. Beckel, 24 Misc.2d 823, 204 N.Y.S.2d 69, is to the contrary. The present ordinance states requisite conditions for the special exception permit in a manner entirely different than the ordinance applicable in Seaview. The conditions in the instant case are described in great detail entirely within the special exception section itself.

The ordinance in Fina entitled a certain class of title holder to a special exception if the applicant met the...