Agenda - Planning Commission - 08/05/2010

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June 25, 2010 1 Volume 4 No. 12 Zoning Bulletin `public's health, safety, welfare and morals,' including, [among other things], `significant traffic congestion' or a `substantial adverse effect on surrounding property values."' The Board could deny the permit if it found significant negative impacts that could not be mitigated. • After the 2007 Amendment, the Church filed with the town an ap- plication for a special exception permit. The Board denied the Church's application in its entirety. The Church brought a legal action, asking the court to annul the Board's determination. The Supreme Court denied the Church's request. It held that the Board's determination was "rational, and not arbitrary and capricious." The Church appealed. The Court's Decision: Judgment of the Supreme Court reversed and matter remanded to the Board. The Supreme Court, Appellate Division, Second Department, New York, held that the town's unconditional denial of the Church's appli- cation for a special exception permit was "an abuse of discretion." In so holding, the court explained that, "[u]nlike a use variance, a `special exception allows the property owner to put his property to a use expressly permitted by the ordinance... subject only to conditions attached to its use to minimize its impact on the surrounding area." The court also emphasized that although religious institutions are not exempt from local zoning laws, "greater flexibility" must be given to the evaluation of an application for a religious use than an application for another use. "[E]very effort to accommodate the religious use must be made," said the court. Thus, here, the court said the Board was required to "suggest measures to accommodate the [Church's] religious use while mitigating [its] adverse effects on the surrounding community...." The court found that the Church's proposed religious use "could have been substantially accommodated." However, it also found that "the Board suggested no measures that would have accommodated [it] while mitigating the adverse effects on the surrounding community." Accordingly, the court annulled the Board's denial of the Church's application for a special exception permit. And, it remitted the matter to the Board with a direction to grant the Church a special exception permit "under such reasonable conditions as will allow the proposed religious use while mitigating any detrimental or adverse effects upon the surrounding community." See also: North Shore Steak House, Inc. v. Board of Appeals of Incor- porated Village of Thomaston, 30 N.Y.2d 238, 331 N.Y.S.2d 645, 282 N.E.2d 606 (1972). 8 ©2010 Thomson Reuters 180