You are here: / / Criteria for a “Special Exception Permit” (Versus a “Variance”)...

Criteria for a “Special Exception Permit” (Versus a “Variance”) Explained

The Second Department, in upholding the zoning board’s denial of a special exception permit and a variance, explained the criteria for a special exception permit:

“Unlike a variance which gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance, a special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right” … . Thus, the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a variance … . The owner must show compliance with legislatively imposed conditions pertaining to the intended use before a special exception permit may be granted … . The denial of a special exception permit must be supported by evidence in the record and may not be based solely upon community objection … . However, where such evidence exists, deference must be given to the discretion of the board authorized to rule upon the application. A court may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record … .

Here, the Board’s determination that the petitioner failed to establish compliance with the legislatively imposed conditions for issuance of the requested special exceptions was supported by evidence in the record, and was not affected by an error of law, was not arbitrary and capricious, was not an abuse of discretion, and was not irrational… . Matter of M & V 99 Franklin Realty Corp v Weiss, 2015 NY Slip Op 00541, 2nd Dept 1-21-15

 

You might also like
PLAINTIFFS ENTITLED TO DAMAGES FOR REDUCED PROPERTY VALUE, PUNITIVE DAMAGES, AND INJUNCTIVE RELIEF IN THIS TRESPASS BY ENCROACHMENT ACTION, APPELLATE COURT CAN MAKE ITS OWN CREDIBILITY ASSESSMENTS IN THE APPEAL OF A BENCH TRIAL (SECOND DEPT).
EXCLUSIVITY OF A WORKERS’ COMPENSATION REMEDY PRECLUDED SUIT AGAINST AN EMPLOYEE OF A PERSON EMPLOYED BY PLAINTIFF’S EMPLOYER, THE NYC DEPARTMENT OF EDUCATION, IN THIS SLIP AND FALL CASE (SECOND DEPT).
THE EMAIL EXCHANGE IN WHICH THE PURCHASE PRICE WAS AGREED TO DID NOT SATISFY THE STATUTE OF FRAUDS, SELLER WAS FREE TO BACK OUT AND SEEK A HIGHER PRICE.
Summary-Judgment Proof Requirements for a Defendant in a Slip and Fall Case Explained (Again)–Not Met Here
CANCELLATION AND DISCHARGE OF A MORTGAGE AND VACATION OF A NOTICE OF PENDENCY MUST BE SOUGHT BY AN ACTION OR A COUNTERCLAIM PURSUANT TO RPAPL 1501, NOT, AS HERE, BY A CROSS-MOTION; THE ISSUE WAS PROPERLY RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).
DEFENDANT ASSERTED SHE THOUGHT PLAINTIFF’S CAR WOULD GO THROUGH THE YELLOW LIGHT AT AN INTERSECTION AND DEFENDANT RAN INTO THE REAR OF PLAINTIFF’S CAR WHEN IT CAME TO A SUDDEN STOP, DEFENDANT’S ASSERTION DID NOT CONSTITUTE A NON-NEGLIGENT EXPLANATION FOR THE REAR-END COLLISION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT).
BECAUSE THE DETERMINATION THAT THE PROPOSED CONSTRUCTION WAS ZONING COMPLIANT WAS NEVER FILED THE 30-DAY APPEAL PERIOD NEVER RAN, BECAUSE A NOTICED HEARING WAS NEVER HELD THE APPROVAL OF THE CONSTRUCTION WAS JURISDICTIONALLY DEFECTIVE (SECOND DEPT).
Delay in Notification Justified Refusal to Defend and Indemnify

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Defendants Not Liable for Assault by a Contractor-Security Guard—No Showing... Marching Band Director Did Not Assume the Risk of Injury Caused by a Defect...