Posted by: Patricia Salkin | February 17, 2014

NY Appellate Court Upholds Denial of Special Use Permit for Cabaret

The Town of Huntington amended their zoning ordinance in 1997 to deal with cabarets, and in particular the language provides that, “the grant of any cabaret use by the Board of Zoning Appeals shall be limited to the specific cabaret use applied for and approved by the Board of Zoning Appeals and no other cabaret use. This section shall apply to any cabaret use hereafter or previously granted by the Board of Zoning Appeals.” In 2011, the Board determined that the language applied to petitioner’s property, for which a special exception had been granted in 1997 and for which a new proposed cabaret use was pending.

The appellate court noted that interpretations of zoning codes by the zoning board of appeals are afforded deference and will not be overturned unless they are unreasonable. The court concluded the interpretation here was not unreasonable. Further, the court concluded that the Board did not act improvidently when it reopened and reheard the application because the court found that the applicant misled the Board concerning the intended use at the initial hearing. The Court also noted that, “The BOA’s findings pertaining to the petitioner’s lack of candor and good faith were credible determination, an issues of credibility were within the sole province of the BOA to resolve.”

Green 2009, Inc. v Weiss, 2014 WL 553293 (NYAD 2 Dept. 2/13/2014)

The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2014/2014_01002.htm


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