Posted by: Patricia Salkin | December 30, 2012

NY Appellate Court Reverses Board’s Denial of Special Permit for Church Finding Board Offered No Reasonable Alternatives to Demonstrate Flexibility in Compliance

The Town of Hempstead Zoning Board of Appeals denied the Tabernacle of Victory Pentecostal Church’s application for a special exception permit and an area variance to waive off-street parking requirements. The Church had sought to hold religious services on the premises, which was split zoned with the front portion in a business district and the rear in a residential zone. The entire property was without off-street parking.  In exchange for a waiver of the off-street parking requirements typical for that zone, the Church offered to allow no more than 105 people to enter the sanctuary at one time, and to bus half of the church’s 60 members to the site using two church vans.  At most, the church estimated it would need no more than 8 to 10 parking spaces during peak hours.

The lower court upheld the board’s denial and the Church appealed.  The appellate court stressed that a special exception is for a use of property which the local government has deemed to be in harmony with existing uses in the zone and thus not detrimental to the neighboring properties.  The court further noted that religious institutions, while not entitled to an outright exemption to local zoning requirements, should be given some flexibility in attempting to conform with zoning laws.  Thus, a zoning board should offer reasonable conditions or accommodations to meet both the purposes of the zoning regulations and the needs of the church.  Since the Board here offered no reasonable alternatives that would allow the church to mitigate any potential negative effects of the permit issuance, nor did they offer any evidence to rebut the presumption that the church deserved some flexibility in complying with local ordinances, the permit denial was improper.  The Appellate Division reversed the Board’s decision and remanded the case with instructions to the Board to grant the church’s requested special exception permit and area variance.

Tabernacle of Victory Pentecostal Church v. Weiss, 2012 WL 6029100 (N.Y. A. D.  2d Dept., 12/5/12)

The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2012/2012_08321.htm


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