While upholding the denial of some area variances and a special permit, finding the evidence in the record supported that determination, the Appellate Division also reversed the denial of a special permit for a refuse enclosure, as well as a variance for placement of a sign. In Matter of White Castle Sys., Inc. v Board of Zoning Appeals of Town of Hempstead, the Court noted:
“‘Unlike 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’…. Thus, the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a variance. The owner is required only to show compliance with legislatively imposed conditions pertaining to the intended use…. ‘Failure to comply with any condition upon a special exception, however, is sufficient ground for denial of the exception’.”(citations omitted)
Here the Court found that the denial of the special permit was not supported by the record and the matter was remanded for the zoning board to grant the special permit with appropriate conditions.
-Steven M. Silverberg