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The Walk in Love for Jesus Christ Church operated as of right in a residential district prior to a change in the zoning ordinance that now requires a special exception permit for religious uses.  The ordinance directs the Town to grant a permit where the proposed use will not cause significant negative impacts on the public health, safety and welfare including significant traffic congestion or a substantial adverse effect on property values.  Significant negative effects may be mitigated under the ordinance by the imposition of appropriate conditions that do not, by their cost, magnitude or volume, operate to exclude the use altogether.

Pastor Jeanette Capriola applied for the special exception permit to continue to hold religious services on the premises.  She also sought area variances for off-street parking and the installation of a sign. As a condition, she offered that only 46 people would be allowed to enter the sanctuary, and while religious services were being conducted, no other area of the premises would be used. The Board denied the requests, and the Pastor appealed.

First, with respect to standing, the Court ruled that although the Church was initially incorporated as a charitable and not religious corporation, the Court will focus on the use itself and not the religious nature of the organization.  Therefore, since the petitioner proposes to use the premises as a house of worship and to conduct regular services, it is a religious use.

The Court then concluded that the Board’s denial was arbitrary and capricious.  The court noted that the use was allowed subject to the special exception permit and that here the petitioner had suggested conditions for the limitation of the use in order to mitigate any impact on the surrounding community. The Court reminds that although religious institutions are not exempt from zoning in New York, greater flexibility is required in evaluating an application for a religious use and every effort must be made to accommodate that use.  Further, the Court noted that a local zoning board is required “to suggest measures to accommodate the proposed religious use while mitigating the adverse effects…”  Since the Board suggested no measures that would have accommodated the religious use while mitigating any adverse effects, the denial was  annulled and the Court remanded with a direction to grant to applications under reasonable conditions to allow the use while mitigating and detrimental or adverse effects.

Capriola d/b/a/  Walk in Love for Jesus Christ v Wright, 2010 WL 2000320 (N.Y.A.D. 2 Dept. 5/18/2010).

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2010/D27402.pdf