Opinion
May 24, 1982
In a proceeding pursuant to CPLR article 78 to review a determination of the Town Board of the Town of Hempstead which denied petitioner's application for a special exception, the appeal is from a judgment of the Supreme Court, Nassau County (Balletta, J.), dated September 9, 1981, which granted the petition. Judgment affirmed, without costs or disbursements. Special Term was not in error in annulling the town board's determination and directing the board to issue petitioner a special exception to maintain a motor vehicle repair and body shop. The town board's finding that the addition of a repair shop would result in a tremendous increase in the congestion, due to the influx of tow trucks backing in wrecks, is not supported by the record. Moreover, the effect of the special exception on petitioner's neighbors does not appear to be greater than that of uses already permitted in the district without special permits (see Matter of Hobbs v. Albanese, 70 A.D.2d 1049). The town board's finding that the subject use would be in direct contravention of the Town of Hempstead plan to beautify the area is contradicted by the very nature of the inclusion of the special exception contained in the ordinance. The inclusion of the permitted use in the ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood. Moreover, while aesthetic considerations are indeed a valid concern of land use regulations, absent specific authorization, the town board may not deny a special exception for aesthetic reasons alone, since the town board can exercise only that authority properly delegated to it ( Matter of De Sena v. Board of Zoning Appeals of Inc. Vil. of Hempstead, 45 N.Y.2d 105). Further, and more importantly, the environmental impact statement filed by the Town of Hempstead's Department of Conservation and Waterways indicates that the "project will not have a significant effect on the environment". Weinstein, J.P., Brown, Niehoff and Boyers, JJ., concur.