| Matter of c/o Hamptons, LLC v Rickenbach |
| 2012 NY Slip Op 06072 [98 AD3d 736] |
| August 29, 2012 |
| Appellate Division, Second Department |
| In the Matter of c/o Hamptons, LLC, Doing Business as c/oMaidstone, et al., Respondents, v Paul F. Rickenbach, Jr., et al.,Appellants. |
—[*1] Cahn & Cahn, LLP, Huntington, N.Y. (Richard C. Cahn of counsel), forrespondents.
In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Board ofTrustees of the Incorporated Village of East Hampton dated October 1, 2009, adopting aresolution enacting Local Law No. 10 (2009) of the Village of East Hampton, which amendedthe Zoning Code of the Village of East Hampton to prohibit the introduction of outdoor dining asan accessory use in a commercial establishment located in a residential district, and in the natureof mandamus to compel the Zoning Board of Appeals of the Incorporated Village of EastHampton and the Design Review Board of the Incorporated Village of East Hampton to considerand grant the petitioners/plaintiffs' previously filed application for a special use permit allowingthe petitioners/plaintiffs to offer outdoor dining at a certain inn and restaurant, and action for ajudgment declaring, inter alia, that Local Law No. 10 (2009) of the Village of East Hampton isnull and void as applied to the petitioners/plaintiffs, the appeal is from a judgment of theSupreme Court, Suffolk County (Tanenbaum, J.), dated December 9, 2010, which granted thatbranch of the petition which was in the nature of mandamus to compel the Zoning Board ofAppeals of the Incorporated Village of East Hampton and the Design Review Board of theIncorporated Village of East Hampton to consider and grant the petitioners/plaintiffs' applicationfor a special use permit.
Ordered that the judgment is affirmed, with costs.
"Although the general rule is that a court should apply the zoning provisions in effect at thetime it renders its decision (see Matterof Jul-Bet Enters., LLC v Town Bd. of Town of Riverhead, 48 AD3d 567 [2008]; Matter of D'Agostino Bros. Enters., Inc. vVecchio, 13 AD3d 369 [2004]), pursuant to the special facts exception, this Court mayapply the law in effect at the time the petitioner's application to the Zoning Board was made. Thespecial facts exception may be applied if the municipality unduly delayed proceedings and actedin bad faith (see Matter of Pokoik v Silsdorf, 40 NY2d 769, 772-773 [1976]; Matter of Mamaroneck Beach & YachtClub, Inc. v Zoning Bd. of Appeals of Vil. of Mamaroneck, 53 AD3d 494, 497 [2008];Caruso v Town of Oyster Bay, 250 AD2d 639 [1998]; Figgie Intl. v Town ofHuntington, 203 AD2d 416 [1994])" (Matter of BBJ Assoc., LLC v Zoning Bd. of Appeals of Town of Kent,65 AD3d 154, 158-159 [2009]).[*2]
Here, the Supreme Court properly determined that thespecial facts exception applied, as the record reflects that the petitioners/plaintiffs (hereinafter thepetitioners) would have been entitled to a special use permit allowing them to offer outdoordining at their inn and restaurant under the law as it existed when they applied for such permit,and that the appellants acted in bad faith in both delaying action on the petitioners' application,and hastily enacting Local Law No. 10 (2009) of the Village of East Hampton (hereinafter theLocal Law), which was specifically intended to defeat the petitioners' entitlement to the specialuse permit (see Matter of Golisano v Town Bd. of Town of Macedon, 31 AD2d 85, 88[1968]).
We reject the appellants' contention that the petitioners were not entitled to a special usepermit as a matter of right prior to the change effected by the enactment of the Local Law, andthat, therefore, the special facts exception does not apply. A special use permit is not a variance,as it does not involve varying the restrictions otherwise imposed by a zoning ordinance but,rather, involves adherence to a zoning ordinance. Moreover, while the power to grant variances isto be exercised sparingly, the issuance of a special use permit is a duty imposed upon a zoningboard, provided that all of the standards provided in the ordinance are met (see 3Anderson's American Law of Zoning § 21.11 at 728-729 [4th ed]). As explained by theAppellate Division, Third Department, "[v]ery clearly, where an applicant has met the standardsimposed by an ordinance, the board is obligated to issue a special use permit" (Matter ofMcDonald v City of Ogdensburg Zoning Bd. of Appeals, 101 AD2d 900, 901 [1984]).
Here, not only did the petitioners establish that all of the standards of the relevant zoningordinance were met, but they also showed that their application for a special use permit wasvirtually identical to that of a similarly situated property owner in the same zoning district, whoseapplication for the same special use permit had been granted by the appellants. Thus, a denial ofthe petitioners' application, under the law as it existed when the application was made, wouldhave been arbitrary and capricious (see Knight v Amelkin, 68 NY2d 975, 977 [1986]).
Finally, in light of the sufficient, uncontroverted proof of the petitioners' compliance with theordinance justifying issuance of the special use permit, the Supreme Court appropriately directedthe Zoning Board of Appeals of the Incorporated Village of East Hampton and the DesignReview Board of the Incorporated Village of East Hampton (hereinafter together the Boards) toissue the special use permit, subject to reasonable conditions consistent with those imposed uponthe similarly situated property owner in the same zoning district, whose application for the samespecial use permit had been granted by the appellants (see Matter of Pokoik v Silsdorf, 40NY2d 769 [1976]; Matter of Highland Brooks Apts. v White, 40 AD2d 178 [1972]).
Accordingly, the Supreme Court correctly granted that branch of the petition which was inthe nature of mandamus to compel the Boards to consider and grant the petitioners' applicationfor the subject special use permit on the ground that the Local Law prohibiting the issuance ofsuch a special use permit is null and void as applied to the petitioners. Dillon, J.P., Dickerson,Austin and Miller, JJ., concur.