court held that zoning board, which erroneously considered application for special-use permit as application for variance, applied stricter standard than ordinance warranted and thus remanded case for reconsideration under appropriate standard
How later courts described this case
- court held that zoning board, which erroneously considered application for special-use permit as application for variance, applied stricter standard than ordinance warranted and thus remanded case for reconsideration under appropriate standard
- matter remanded to the board for consideration of petitioner's application as one for a special permit when the board denied application after applying a stricter standard than was warranted
Written by the judges who cited it.
The opinion
In a proceeding pursuant to CPLR article 78 inter alia to review a determination of the respondent zoning board of appeals which, after a hearing, denied petitioner’s application for a special use permit, he appeals from a judgment of the Supreme Court, Westchester County, dated March 1, 1976, which dismissed the petition. Judgment reversed, on the law, without costs or disbursements, and matter remanded to the zoning board of appeals for a new determination in accordance herewith. The zoning board of appeals erroneously considered petitioner’s application for a special use permit as an application for a variance. The board thus applied a stricter standard than was warranted. Accordingly, we remand the matter to the board for consideration of petitioner’s application as one for a special permit. On remand, the board shall consider whether the proposed use meets the standards prescribed by the ordinance, since 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 the neighborhood” (see Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238, 243 ). Hopkins, Acting P. J., Martuscello, Margett, Rabin and Hawkins, JJ., concur.