In the Matter of c/o Hamptons, LLC, Doing Business as c/o Maidstone, et al., Respondents, v Paul F. Rickenbach, Jr., et al., Appellants.
Appellate Division of the Supreme Court of New York, Second Department
950 N.Y.S.2d 182
Ordered that the judgment is affirmed, with costs.
“Although the general rule is that a court should apply the zoning provisions in effect at the time it renders its decision (see Matter of Jul-Bet Enters., LLC v Town Bd. of Town of Riverhead, 48 AD3d 567 [2008]; Matter of D’Agostino Bros. Enters., Inc. v Vecchio, 13 AD3d 369 [2004]), pursuant to the
Here, the Supreme Court properly determined that the special facts exception applied, as the record reflects that the petitioners/plaintiffs (hereinafter the petitioners) would have been entitled to a special use permit allowing them to offer outdoor dining 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 the Local Law), which was specifically intended to defeat the petitioners’ entitlement to the special use 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 use permit as a matter of right prior to the change effected by the enactment of the Local Law, and that, 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 is to be exercised sparingly, the issuance of a special use permit is a duty imposed upon a zoning board, provided that all of the standards provided in the ordinance are met (see 3 Anderson’s American Law of Zoning § 21.11 at 728-729 [4th ed]). As explained by the Appellate Division, Third Department, “[v]ery clearly, where an applicant has met the standards imposed by an ordinance, the board is obligated to issue a special use permit” (Matter of McDonald 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 zoning ordinance were met, but they also showed that their application for a special use permit was virtually identical to that of a similarly situated property owner in the same zoning district, whose application for the same
Finally, in light of the sufficient, uncontroverted proof of the petitioners’ compliance with the ordinance justifying issuance of the special use permit, the Supreme Court appropriately directed the Zoning Board of Appeals of the Incorporated Village of East Hampton and the Design Review Board of the Incorporated Village of East Hampton (hereinafter together the Boards) to issue the special use permit, subject to reasonable conditions consistent with those imposed upon the similarly situated property owner in the same zoning district, whose application for the same special use permit had been granted by the appellants (see Matter of Pokoik v Silsdorf, 40 NY2d 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 in the nature of mandamus to compel the Boards to consider and grant the petitioners’ application for the subject special use permit on the ground that the Local Law prohibiting the issuance of such a special use permit is null and void as applied to the petitioners. Dillon, J.P., Dickerson, Austin and Miller, JJ., concur.