Roginski v. Rose

Proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Hempstead, dated May 13, 1982, which, after a hearing, denied petitioner’s application for a special exception permit to use his property for the precision machining of small parts. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. There was a rational basis for and substantial evidence in the record to support the determination of the Zoning Board of Appeals of the Town of Hempstead that the proposed use did not comply with the standards in the ordinance that govern the granting of special exception permits. A special use permit may be granted only upon the prior approval of the board of appeals (see Town of Hempstead Building Zone Ordinance, art 7, §§ X-1.0, X-1.14). Such approval is subject to a determination by the board of appeals: “1. That the use will not prevent the orderly and reasonable use of adjacent properties or of properties in adjacent use districts; 2. That the use will not prevent the orderly and reasonable use of permitted or legally established uses in the district wherein the proposed use is to be located or of permitted or legally established uses in adjacent use districts; 3. That the safety, the health, the welfare, the comfort, the convenience or the order of the Town will not be adversely affected by the proposed use and its location; and 4. That the use will be in harmony with and promote the general purposes and intent of this ordinance” (Town of Hempstead Building Zone Ordinance, art 12, § Z-1.0, subd B, par [a]). Entitlement to a special exception permit is not a matter of right (Matter of Lemir Realty Corp. v Larkin, 11 NY2d 20, 24) and compliance with ordinance standards must be shown before a special exception permit can be granted (see Matter of Tandem Holding Corp. v Board of Zoning Appeals, 43 NY2d 801, 802; Matter of Cappadoro Land Dev. Corp. v Amelkin, 78 AD2d 696, app dsmd 54 NY2d 833). In making such a determination, the ordinance requires that the board of appeals shall give consideration, inter alia, as to whether the use may give off obnoxious odors or cause disturbing emissions of vibration or noise (see art 12, § Z-1.0, subd B, par [b], els 5, 6). At the hearing, in addition to other testimony, nearby residents testified that disturbing odors and noises were being emitted from petitioner’s premises. We cannot say that the board’s determination, that petitioner’s proposed use did not comply with the ordinance in view of the proximity of the use to residences and the emission of obnoxious odors, vibration and noise, is without a rational basis and is not supported by substantial evidence (see Matter of Ferman v Board of Appeals, 69 AD2d 882). Mollen, P. J., Brown and Rubin, JJ., concur.