Tabernacle of Victory Pentecostal Church v. Weiss

• Decision Date: 05 December 2012
• Citation: 955 N.Y.S.2d 180,2012 N.Y. Slip Op. 08321,101 A.D.3d 738
• Parties: In the Matter of TABERNACLE OF VICTORY PENTECOSTAL CHURCH, appellant, v. David P. WEISS, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 738

955 N.Y.S.2d 180

2012 N.Y. Slip Op. 08321

In the Matter of TABERNACLE OF VICTORY PENTECOSTAL CHURCH, appellant,

v.David P. WEISS, etc., et al., respondents.

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

Dec. 5, 2012.

Avrutine & Associates, PLLC, Syosset, N.Y. (Howard D. Avrutine and Tamar Harutunian of counsel), for appellant.

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Donna A. Napolitano, Daniel J. Evers, and Peter Sullivan of counsel), for respondents.

ANITA R. FLORIO, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

In a proceeding pursuant to CPLR article 78 to review two determinations of the Zoning Board of Appeals of the Town of Hempstead, both dated July 15, 2010, which, after a hearing, denied the petitioner's applications for a special exception permit and an area variance to waive an off-street parking requirement, respectively, the petitioner appeals from a revised judgment of the Supreme Court, Nassau County (Galasso, J.), entered July 29, 2011, which, upon an order of the same court entered June 23, 2011, denying the petition, dismissed the proceeding.

ORDERED that the revised judgment is reversed, on the law, with costs, the petition is granted, the determinations are annulled, the order is modified accordingly, and the matter is remitted to the Zoning Board of Appeals of the Town of Hempstead for new determinations in accordance herewith.

The petitioner, Tabernacle of Victory Pentecostal Church, is the owner of certain premises on Hempstead Turnpike in Franklin Square. The property is split zoned, the front situated in a Business District and the rear situated in a Residence “C” District. The premises have no on-site parking. The petitioner filed an application with the Board of Appeals of the Town of Hempstead (hereinafter the Board) for a special exception permit so that religious services could be held on the premises. The petitioner also sought an area variance for a waiver of the Town's off-street parking requirements. As a condition to the grant of the applications, the petitioner proposed that only 105 people would be allowed to enter the sanctuary, and that two church vans would transport half of the petitioner's approximately 60 members to the site, resulting in the need for off-site parking for, at most, 8 to 10 vehicles during its peak hours of operation. After public hearings, the Board denied the petitioner's applications in their entirety. The petitioner commenced this proceeding pursuant to CPLR article 78 to annul the Board's determinations. The Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals, and we reverse.

“Unlike a variance which gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance, a special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right” (Matter of Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 98 N.Y.2d 190, 195, 746 N.Y.S.2d 662, 774 N.E.2d 727 [citation omitted] ). The “ ‘inclusion of the permitted use in the ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood’ ” ( id. at 195, 746 N.Y.S.2d 662, 774 N.E.2d 727, quoting Matter of North Shore Steak House v. Board of Appeals of Inc. Vil. of Thomaston, 30 N.Y.2d 238, 243, 331 N.Y.S.2d 645, 282 N.E.2d 606). In connection with its application for a special exception permit, the petitioner properly sought an area variance to waive the off-street parking requirement, which may be granted in connection with the permit ( seeTown Law § 274–b [3]; Matter of Real Holding Corp. v. Lehigh, 304 A.D.2d 583, 756 N.Y.S.2d 893,affd.2 N.Y.3d 297, 778 N.Y.S.2d 438, 810 N.E.2d 890;Matter of Sunrise Plaza Assoc. v. Town Bd. of Town of Babylon, 250 A.D.2d 690, 693, 673 N.Y.S.2d 165). In addition, the petitioner suggested conditions for the limitation of its use in order to mitigate the impact on the surrounding community. “[W]hile religious institutions are not exempt from local zoning laws, greater flexibility is required in evaluating an application for a religious use than an application for another use and every effort to accommodate the religious use must...