June 9, 2015

In Nathan v. Board of Appeals of Town of Hempstead, 125 A.D.3d 866 (2nd Dept. 2015), the Second Department Appellate Division held that the Supreme Court properly denied that branch of the petition which was to review the determination of the Board of Appeals of the Town of Hempstead denying the Petitioners’ application for a special exception permit under the Town of Hempstead Building Zone Ordinance.

Petitioner property owner had commenced a CPLR Article 78 proceeding seeking to reverse the Town of Hempstead’s denial of a special exception use permit for a three family home.

The Supreme Court affirmed the Zoning Board’s decision and the Petitioner appealed to the Second Department Appellate Division.

The Court recited the applicable legal standard as follows: 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. The burden on an owner in seeking a special exception permit is, therefore, “considerably less” than the burden on an owner seeking a use variance. An applicant for a special exception permit need only show that it has complied with every legislatively imposed condition on the permitted use. Significantly, if the applicant fails to comply with any of the conditions set forth in the ordinance, the zoning authority may deny the application.

In this case, Petitioners did not dispute that the property they wished to use for a three-family residence did not meet the minimum lot-size requirements under the Town of Hempstead Zone Ordinance. Accordingly, the Second Department Appellate Division held that the Supreme Court properly denied that branch of the petition which was to review the determination of the Board of Appeals of the Town of Hempstead denying the Petitioners’ application for a special exception permit under the Town of Hempstead Building Zone Ordinance.

If you have any questions about zoning or other real estate matters, please do not hesitate to contact an experienced attorney at (914) 338-8050. For more information about our firm please visit www.betenskylaw.com.