Yeshiva & Mesivta Toras Chaim v. Rose

• Decision Date: 25 January 1988
• Citation: 136 A.D.2d 710,523 N.Y.S.2d 907
• Court: New York Supreme Court — Appellate Division
• Parties: , 44 Ed. Law Rep. 587 In the Matter of YESHIVA & MESIVTA TORAS CHAIM, Appellant, v. Henry W. ROSE, etc., et al., Respondents.

Page 907

523 N.Y.S.2d 907

136 A.D.2d 710, 44 Ed. Law Rep. 587

In the Matter of YESHIVA & MESIVTA TORAS CHAIM, Appellant, v. Henry W. ROSE, etc., et al., Respondents.

Supreme Court, Appellate Division Second Department.

Jan. 25, 1988.

Cohn & Foley, P.C., Baldwin (William S. Cohn, of counsel), for appellant.

W. Kenneth Chave, Jr., Town Atty., Hempstead (Charles S. Kovit, of counsel), for respondents.

Before THOMPSON, J.P., and BROWN, SPATT and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of Hempstead (hereinafter the board) dated June 17, 1986, which denied the petitioner a permit to use its building under the designation of religious use and also denied certain variance requests, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Molloy, J.), dated April 17, 1987, which, after a hearing, upheld the board's determination.

ORDERED that the judgment is affirmed, with costs.

The petitioner is a not-for-profit corporation which operates a private school for Jewish children from nursery through eighth grade. It purchased a parcel of property improved with a building in the Town of Hempstead for the purpose of creating a center for the study of the Nazi persecution of the Jews, known as the "Holocaust". The petitioner applied to the town for a permit to change the use of the subject premises from a one-family residence to a religious study center. The proposed use was to engage in the study of the "Holocaust" and provide materials, facilities and education to others at the premises relating to the Holocaust. The petitioner contends that the center's activities constituted a religious or educational use and, thus, should be allowed as of right in the residential neighborhood in which it was situated. The petitioner also requested variances for off-street parking and side-yard setbacks. The Department of Buildings, the board and the Supreme Court disagreed. All found the activities conducted on the premises not to be a "religious use" as required under section 16 of article IV, and section 83 of article IX, of the Town of Hempstead Building Zone Ordinance.

In order to be afforded a permit for an "educational use" under the ordinance, the petitioner must be approved for such activity by a Charter from the Board of Regents of the State of New York, which, it is conceded, is lacking.

The applicable standards for review of a determination of a zoning board of appeals have been stated as follows:

"The courts may set aside a zoning board determination only where the record reveals illegality, arbitrariness or abuse of discretion ( Matter of Fulling v Palumbo, 21 NY2d 30, 32 [286 N.Y.S.2d 249, 233 N.E.2d 272]; Matter of Lemir Realty Corp. v Larkin, 11 NY2d 20, 24 [226 N.Y.S.2d 374, 181 N.E.2d 407] ). Phrased another way, the determination of the responsible officials in the affected community will be sustained if it has a rational basis and is supported by substantial evidence in the record. ( Matter of Wilcox v Zoning Bd. of Appeals of City of Yonkers, 17 NY2d 249, 255, [270 N.Y.S.2d 569, 217 N.E.2d 633] supra.) ( Conley v. Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309, 314 [386 N.Y.S.2d 681, 353 N.E.2d 594] supra.)" ( Matter of Cowan v. Kern, 41 N.Y.2d 591, 598, 394 N.Y.S.2d 579, 363 N.E.2d 305, rearg. denied 42 N.Y.2d 910, 397 N.Y.S.2d 1029, 366 N.E.2d 1365; see also, Matter of Frishman v. Schmidt, 61 N.Y.2d 823, 473 N.Y.S.2d 957, 462 N.E.2d 134; Human Dev. Servs. of Port Chester v. Zoning Bd. of Appeals of Vil. of Port Chester, 110 A.D.2d 135, 493 N.Y.S.2d 481, affd. 67 N.Y.2d 702, 499 N.Y.S.2d 927, 490 N.E.2d 846; Matter of CDK Rest. v. Krucklin, 118 A.D.2d 851, 500 N.Y.S.2d 339).

Upon a review of the record, we find the determination of the board that the center as operated was not a religious use under the Town of Hempstead Building Zone Ordinance was supported by substantial evidence, and thus we decline to disturb its finding ( 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 408 N.Y.S.2d 54, 379 N.E.2d 1183; Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321; Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N.Y.2d 508, 154 N.Y.S.2d 849, 136 N.E.2d 827; Matter of Community Synagogue v. Bates, 1 N.Y.2d 445, 154 N.Y.S.2d 15, 136...