A recent appellate court case, Matter of Lazarus v Board of Trustees of the Village of Malverne, 31 NYS3d 207 [2d Dept 2016], involves the approval of a special use and the denial of a special exception for the same residential premises. Here are the facts of the case.

The house in question is a two-story single-family Cape Cod style home located in a Residence B district in the Village of Malverne (“Village”).  The owner and her husband live on the second floor and her adult son rents the first floor.   The owner installed a second kitchen on the second floor and constructed a deck and attached exterior staircase without any building permits.  The second-story deck and exterior staircase were initially constructed in 1981.  At the time, a special exception permit was not needed for this structure.  The deck was removed in 2007 and was rebuilt in 2010 with the exterior staircase going from ground level to an entrance on the second floor.

In 2011, the owner sought a special use permit for the existing kitchen on the second floor. She also sought a special exception permit to approve the “mother/daughter” occupancy and to maintain the second-story deck and exterior staircase.  In October 2013, after three public hearings, the Village Board of Trustees (“Village Board”) granted the mother/daughter status and the special use permit to maintain the second-floor kitchen.  However, the Village Board denied the special exception to legalize the second-story deck and exterior staircase.  The owner commenced an Article 78 proceeding against the Village, challenging the decision.

In July 2014, the trial court granted the petition and annulled the determination of the Village Board. The trial court reasoned that by approving the mother/daughter status and the special use permit for the kitchen, the Village Board should have also approved the secondary access point. Otherwise, access to the second story would encroach upon the privacy of the parents and their adult son.  The trial court also noted that the Village could impose appropriate safeguards for the second-story entrance.

The Village appealed and in July 2016, the appellate court reversed and dismissed the proceeding.   The appellate court explained that a use variance allows the property to be used in a manner that is “inconsistent with a local zoning ordinance” and a special exception allows the property to be used in a manner “that is consistent with the zoning ordinance, although not necessarily allowed as of right.”  The owner did not seek a use variance in this instance, but instead, sought a special exception.

The appellate court determined that the Village Zoning Code prohibits decks above the first floor grade of a dwelling and requires a special exception from the Village Board for any deck constructed above the first floor. But in this case, the home owner wasn’t merely asking approval for an above-grade deck.  She was asking for approval of the deck and staircase, deemed a structure by the court.  However, the Village Zoning Code does not explicitly allow for a structure under this special exception provision.  As a result, the appellate court agreed with the Village Board’s determination that the deck/staircase structure was inconsistent with the surrounding single-family neighborhood and, thus, not entitled to a special exception.  Bottom line, the owner was allowed to keep her second-story kitchen but not the second-story deck, staircase and separate entrance.