Opinion
November 27, 1978
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Village of East Hills, dated October 24, 1977, that denied petitioner's application for a variance for a tennis court that was constructed pursuant to a special exception permit previously granted by the board, the appeal is from a judgment of the Supreme Court, Nassau County (Gibbons, J.), entered May 17, 1978, which annulled the board's determination and remanded the matter to it "for a further hearing for consideration of proof on the issue of the practical difficulty and for a determination on the merits of petitioner's application." Permission for the taking of this appeal is hereby granted by Mr. Justice Suozzi (see Matter of North Amer. Holding Corp. v Murdock, 6 A.D.2d 596, 599-600, affd 6 N.Y.2d 902; Matter of Soros v Board of Appeals of Vil. of Southampton, 24 A.D.2d 705). Judgment affirmed, without costs or disbursements. Appellants are correct in asserting that they had no power to vary the detailed conditions required by the subject ordinance for the grant of a special exception permit to construct and maintain a tennis court upon an initial application therefor (see Matter of Schroeder v Kreuter, 206 Misc. 198, affd 284 App. Div. 972, affd 308 N.Y. 993). Neither Seaview Assn. of Fire Is., N.Y. v Zoning Bd. of Appeals of Town of Brookhaven ( 53 A.D.2d 605), nor Matter of Fina Homes v Beckel ( 24 Misc.2d 823), is to the contrary. The present ordinance states requisite conditions for the special exception permit in a manner entirely different than the ordinance applicable in Seaview. The conditions in the instant case are described in great detail entirely within the special exception section itself. The ordinance in Fina entitled a certain class of title-holder to a special exception if the applicant met the conditions that limited the class. The conditions imposed by the special exception were not varied. Either an applicant met the limitations and was entitled to the exception, or he did not. If an applicant did not qualify or meet the status of the special exception applicant, then he had to seek consideration under a different section of the ordinance. Notwithstanding the absence of authority or power to vary the conditions imposed by the ordinance at the outset, once the untoward circumstance occurred, to wit, the builder placed the tennis court on the property line rather than 20 feet back from the line as required, the situation called for a different manner of review (see Banos v Colborn, 35 A.D.2d 281, affd 30 N.Y.2d 502). Latham, J.P., Suozzi, Gulotta, Shapiro and Cohalan, JJ., concur.