White Castle restaurant applied to the Board of Appeal (“BOA”) for special exception permits and variances.  White Castle sought special exception permits to install drive-thru windows, allow parking in front of their restaurant, and to build a refuse/recycling structure.  White Castle also applied for variances, seeking the town to waive off-street parking requirements and parking lot restrictions, install a sign and a menu board sign.  The BOA denied White Castle’s applications.  White Castle brought this proceeding and the trial court dismissed it.  White Castle appealed. 

The appellate court looked first at the special exception requests.  A special exception, explained the court, would allow an applicant to use property consistent with the zoning laws but not articulated as an affirmative right.  Thus, the burden on the applicant is lower for a special exception than a variance, and a denial must be based on specific evidence.  Here, the court found that there was testimony from traffic experts, real estate experts, and neighboring property owners that the drive-thru and front yard parking “would prevent the orderly and reasonable use of adjacent properties and would adversely affect the . . . Town.”  Although there was conflicting testimony, the court pointed out that they must give deference to the judgments of the BOA.  Although the appellate court upheld the board’s denial of the drive-thru and front yard parking, they find that the denial of a refuse/recycling was not supported by the record and they remitted that application to the BOA for approval. 

Next, the court looked at the variance denials.  The court found that the denial of the parking lot and menu board sign had a rational basis.  The denial of the variance for the other sign, however, was unsupported and lacking rational basis.  Thus, the court remitted that application to the BOA for approval. 

White Castle Sys., Inc. v. Bd. of Zoning Appeals of Hempstead, 2012 WL 833168 (N.Y.A.D. 2 Dep’t 03/13/2012) 

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2012/D34215.pdf