N. Shore Steak House, Inc. v. Bd. of Appeals - 30 N.Y.2d 238, 331 N.Y.S.2d 645, 282 N.E.2d 606 (1972)

Rule:

The burden of proof on an applicant for a special exception permit is much lighter than that required for a hardship variance. It does not require the applicant to show that it has been denied any reasonable use of the property but only that the use is contemplated by the ordinance subject only to "conditions" attached to its use to minimize its impact on the surrounding area.

Facts:

Appellant North Shore Steak House, Inc., as lessee, and the lessor of the plot of land made an application for a special exception permit, pursuant to the Village of Thomaston, N.Y., Zoning Ordinance, art. X, § 3. The application also sought a variance to improve a portion of the land with additional parking. In rejecting the application for a variance, the Board of Appeals of the Village of Thomaston's (board) found that the premises were not unique or different from other split zoned property in the village, that the hardship, if any, was self-created, that the evidence that the variance would have an adverse effect on the adjoining property was not rebutted, and that a ratio of one car to every three or four seats was all that should be reasonably required. Based on these findings, the board also concluded, without any additional findings or conditions that the special exceptions permit would not be in harmony with the general intent of the zoning scheme. Appellant sought review of the Board’s decision. 

Issue:

Did the Board properly deny appellant’s application for a special exception permit on the basis that it would not be in harmony with the general intent of the zoning scheme? 

Answer:

No.

Conclusion:

The court held that absent support in the record for the conclusions advanced by the board justifying the denial, and in view of “erroneous standard” used, namely that applicable to a hardship variance, the decision of the board with respect to the special permit was deemed arbitrary and capricious. The court noted that the board’s denial ignored the difference between a variance and a special exception permit. A variance was an authority to a property owner to use property in a manner forbidden by the ordinance while a special exception allowed the property owner to put his property to a use expressly permitted by the ordinance. According to the court, the inclusion of the permitted use in the ordinance indicated that the permitted use was in harmony with the general zoning plan and will not adversely affect the neighborhood.