Framike Realty Corp. v. Hinck
Opinion of the Court
—In a proceeding pursuant to CPLR article 78, to review a determination of the Board of Trustees of the Village of Mineóla, dated January 19, 1994, which denied the petitioner’s application for a special exception permit for a drive-in restaurant, the appeal is from a judgment of the Supreme Court, Nassau County (Robbins, J.), dated August 29, 1994, which dismissed the proceeding.
Ordered that the judgment is reversed, on the law, with costs, the petition is granted, the determination is annulled, and the proceeding is remitted to the Board of Trustees of the Village of Mineóla for the purpose of issuing the special exception permit requested by the petitioner, subject to such appropriate conditions and restrictions as may be imposed.
Unlike a variance, a special permit or special exception allows an owner to use the subject property in a manner expressly permitted by law (see, Matter of North Shore Steak House v Board of Appeals, 30 NY2d 238; Matter of C.B.H. Props. v Rose, 205 AD2d 686). Such a classification is tantamount to a legislative finding that, if the special exception conditions are
In this instance, the generalized complaints of the residents as to increased traffic and insufficient parking, and the summary recommendation of the Village of Mineóla Planning Board, were uncorroborated by any empirical data or expert opinion. Therefore, there was insufficient evidence to counter the evidence submitted by the appellant’s experts that the area roads were able to handle any increase in traffic. Thus, there was no basis in the record upon which the Board of Trustees could properly base a denial of the application and the petition should have been granted. O’Brien, J. P., Joy, Altman and Florio, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.