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St. Thomas Malankara Orthodox Church, Inc. v. Board of Appeals

23 A.D.3d 666 Court N.Y. App. Div. Decision date 2005-11-28 English

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p. 666
In the Matter of St. Thomas Malankara Orthodox Church, Inc., Long Island, Respondent, v Board of Appeals, Town of Hempstead, Appellant.
[804 NYS2d 801]

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Appeals, Town of Hempstead, dated February 20, 2003, which, after a hearing, denied the petitioner’s application to waive certain off-street parking requirements, the appeal is from a judgment of the Supreme Court, Nassau County (Martin, J.), entered May 10, 2004, which granted the petition, annulled the determination, and directed the Board of Appeals, Town of Hempstead, to grant the application.

Ordered that the judgment is affirmed, with costs.

It is well settled that “while religious institutions are not exempt from local zoning laws, greater flexibility is required in evaluating an application for a religious use than an application for another use and every effort to accommodate the religious use must be made” (Matter of Genesis Assembly of God v Davies, 208 AD2d 627 , 628 [1994]; see Cornell Univ. v Bagnardi, 68 NY2d 583 [1986]; Matter of Westchester Reform Temple v Brown,

p. 667
22 NY2d 488 [1968]; Matter of Rosenfeld v Zoning Bd. of Appeals of Town of Ramapo, 6 AD3d 450 [2004]; Matter of Young Israel of N. Woodmere v Town of Hempstead Bd. of Zoning Appeals, 221 AD2d 646 [1995]; Matter of Harrison Orthodox Minyan v Town Bd. of Harrison, 159 AD2d 572 [1990]). A local zoning board is required to “suggest measures to accommodate the proposed religious use while mitigating the adverse effects on the surrounding community to the greatest extent possible” (Matter of Genesis Assembly of God v Davies, supra at 628 ; see McGann v Incorporated Vil. of Old Westbury, 256 AD2d 556 [1998]; Matter of Islamic Socy. of Westchester & Rockland v Foley, 96 AD2d 536 [1983]). Here, the record reflects that the Board of Appeals, Town of Hempstead (hereinafter the Board) made no effort to suggest such measures. Accordingly, the Board’s determination was arbitrary, capricious, and an abuse of discretion, and was properly annulled (see Matter of Genesis Assembly of God v Davies, supra; Matter of Harrison Orthodox Minyan v Town Bd. of Harrison, supra). Schmidt, J.P., Adams, Luciano and Covello, JJ., concur.

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