Variances vs. Special Exceptions: In the Matter of Tabernacle of Victory Pentecostal Church v. David P. Weiss

Tabernacle of Victory Pentecostal Church (“Petitioner”) is the owner of a certain property on the Hempstead Turnpike in Franklin Square, New York. The property is split zoned, with the front situated in a “Business District” and the rear situated in a “Residence C District.” Due to a lack of on-site parking, Petitioner filed an application with the Board of Appeals of the Town of Hempstead (the “Board”) for a special exception permit so that religious services could be held on the property. Petitioner also sought an area variance for a waiver of the Town’s off-street parking requirement. As a condition to the grant of the application, Petitioner proposed that a maximum of 105 people would be allowed to enter the sanctuary, and that two church vans would transport half of Petitioner’s members – approximately 60 people – to the site. The result would be a need for off-site parking for, at most, 8 to 10 vehicles during the Church’s peak hours of operation. After several public hearings, the Board denied Petitioner’s application in its entirety. Consequently, Petitioner brought suit in the New York Supreme Court seeking annulment of the Board’s determinations. The Supreme Court denied the petition and dismissed the proceedings, and the following appeal ensued.

The Appellate Division began by noting that “[u]nlike 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 (2002). 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 that neighborhood,” Id. at 195 (quoting N. Shore Steak House v. Thomaston, 30 N.Y.2d 238 (1972). In connection with its application for a special exception permit, Petitioner properly sought an area variance to waive the off-street parking requirement, which may be granted in connection with the permit. In addition, 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 be made.” Matter of Genesis Assembly of God v. Davies, 208 A.D.2d 627 (1994). A local zoning board is required to “suggest measures to accommodate the proposed religious use while mitigating the adverse effects on the surrounding community to the greatest extent possible.” Id. at 628.

Instead, Hempstead’s Board suggested no measures that would have accommodated the proposed religious use while mitigating the adverse effects on the surrounding community. See Matter of St. Thomas Malankara Orthodox Church, Inc. Long Is. v. Town of Hempstead, 23 A.D.3d 666, 667 (2005); Matter of Harrison Orthodox Minyan v. Town Bd. of Harrison, 159 A.D.2d 572, 573 (1990). Rather, despite the conditions proposed by Petitioner, the Board denied Petitioner’s application in its entirely, even though the proposed religious use could have been substantially accommodated. See Capriola v. Wright, 73 A.D.2d 1043 (2010). Further, the evidence was insufficient to rebut the presumed beneficial effect of the proposed religious use. See Pine Knolls Alliance Church v. Town of Moreau, 804 N.Y.S.2d 708 (2005).

Accordingly, the Appellate Division granted the petition, and annulled the Board’s determination. The matter was remitted to the Board with direction to grant Petitioner’s application for a special exception permit and area variance under such reasonable conditions as would allow the proposed religious use while mitigating any detrimental or adverse effects upon the surrounding community.