The following papers and the attachments and exhibits thereto have been read on this [*2]petition:

Notice of Petition1

Affirmation in Opposition2

Reply Affirmation3

Affirmation of Exhibits4

This is a proceeding pursuant to Article 78 of the CPLR to review a determination of the Respondent, Village of Hempstead Board of Zoning Appeals ("ZBA"), dated July 7, 2011, which, after a hearing, denied the application of the Petitioner, Emmanuel Brethren Assembly ("Church") for two variances to permit utilization of a building located at 240 Clinton Street, Hempstead, as an Assembly of God meeting hall. Such use requires that 25 off-street parking spaces be provided at the site which is presently configured to permit 12 parking spaces.^[FN1]

Four hearings took place over a six-month period on the application for both variances. During the third hearing on May 5, 2011, the ZBA requested a copy of the Church's certificate of incorporation, the Church's tax exemption certificate, and a copy of the contract of sale for the property in which the Church was a contract vendee (Ex. "U" to Petition at pp 25-26). Prior to adjourning, the Chairman of the ZBA stated: "We want those documents in full. Once again, if you want us to move on this application, you have to provide us with the requested documents, and I am not going to entertain any further discussions" (Ex "O" to Petition at p 28). Although the Church protested that the documents were necessary, it nevertheless submitted the certificate of incorporation, the tax exemption certificate, and an unsigned copy of the contract of sale prior to the next hearing date, which was July 7, 2011 (Exs "P", "Q", "S", "T" and "V" at p 22 to Petition).^[FN2]

The decision to deny the application was rendered at the fourth and final hearing held on July 7, 2011. At the conclusion of the hearing, the Chairman of the ZBA stated that there was no need for further discussion and asked for a motion denying the Church's application. The motion was made, seconded and carried (Ex. "V" to Petition at pp 35-36). By letter dated July 8, 2011, the ZBA notified the Church that its "zoning case was heard and considered by the Board of Zoning Appeals at the regular meeting held on July 7, 2011. At that time the board rendered a [*3]decision denying your application. In the event you have any questions, please do not hesitate to contact this office" (Ex. "W" to Petition). The July 8 letter and the hearing transcripts were eventually filed with the Office of the Village Clerk (Affirmation in Opposition at ¶ 7).

On July 12, 2011, the Church requested a copy of the ZBA's decision (Ex. "X"). The following day, the Church received a letter from the Deputy Village Attorney dated July 13, 2011, which read, in relevant part:

This letter is in response to your faxed request of July 12, 2011 . . . for a copy of the decision rendered by the Board . . . . As you will recall, the Board rendered its decision by way of a motion made, seconded and carried at the hearing conducted on July 7, 2011. Accordingly, their decision was determined by testimony during the four hearings which took place on February 3, 2011, April 7, 2011, May 5, 2011 and July 7, 2011. As soon as the July 7, 2011 transcript becomes available, I will forward a copy of the transcripts from all four dates to you. They constitute the basis for the Board's decision at the July 7, 2011 hearing (Ex. "Y" to Petition).

By letter dated July 15, 2011, the Church requested that the decision of the ZBA be filed with the Village Clerk (Ex. "Z" to Petition). The Village Attorney responded to the Church's request as follows:

In response to your letter of July 15, 2011, your failure and refusal to turn over the documents requested by the Board, and your eventual turnover of most of those documents in blank,^[FN3] prevented the Board from effectively focusing on all of the standards to which you refer in your letter. Nevertheless, despite your failure to comply with the Board's requests, the Board, after considering lay and expert testimony, concluded that there is a lack of suitable on street and off street parking under our Village Code to accommodate this application.

The hearings on February 3, April 7, May 5 and July 7, 2011 constitute the decision in this matter. The transcripts of those four hearings were collectively filed with the Village Clerk. A copy of them is enclosed herewith (Ex. "AA" to Petition) (emphasis added).

The Church thereafter commenced the instant Article 78 proceeding seeking, inter alia, a judgment: 1) directing the ZBA to prepare a decision that includes to findings based upon the facts and evidence submitted at the four hearings; 2) directing the ZBA grant the Church's application for the two variances; and 3) annulling and setting aside the "decision" rendered by the ZBA (Notice of Petition).

The ZBA argues that in rendering its decision, it considered the relevant criteria and balanced the benefit to the Church of granting the application against the detriment to the health, safety and welfare of the neighborhood or community (Affirmation in Opposition at ¶ 13). [*4]According to the ZBA, "the evidence caused the [ZBA] to conclude that the off-street parking was clearly insufficient" and "counsel's unresponsiveness to the [ZBA's] authority resulted in the denial of this petition" (Affirmation in Opposition at ¶ 8).

In its petition,^[FN4] the Church argues that the ZBA violated Village Law § 7-712-a(2) which provides, in relevant part, that every "decision or determination of the board of appeals shall be filed in the office of the village clerk within five business days and shall be a public record." Section 139-137(E) of the Village Code similarly provides that every "decision or determination of the Board shall immediately be filed in the office of the Village Clerk and shall be a public record" (Ex. "BB" to Petition). According to the Village Attorney, the hearings "constitute[d] the decision in this matter", the transcripts of which were filed with the Village Clerk (Ex. "AA" to Petition).

Generally, in the absence of a written decision and a proper statement of findings of fact, the court is unable to intelligently exercise its review function (Greene v Johnson, 121 AD2d 632 [2d Dept 1986]). The ZBA had a substantial opportunity to provide findings of fact to support its determination (Exs. "Y" and "Z"), but refused to make such findings despite the numerous requests to do so. Under these circumstances, the ZBA's denial of the Church's variance application was arbitrary and an abuse of discretion (see Marcello v Humenik, 222 AD2d 677 [2d Dept 1995]).

Notwithstanding the absence of any findings of fact, it can be adequately ascertained from a review of the record, including the hearing transcripts and various correspondence between the parties, that the ZBA's decision to deny the variances was based upon the lack of available off street parking (see Fischer v Markowitz, 166 AD2d 444 [2d Dept 1990] [even if zoning board did not adequately set forth specific findings of fact in support of its determination, the determination would not be invalid "since it can be ascertained from a review of the record that the decision to grant the variance has a rational basis"]; Ohrenstein v Zoning Board of Appeals of the Town of Canaan 39 AD3d 1041 [3d Dept 2007] [no basis to annul ZBA determination for failure to include findings of fact in its decision where review of the record demonstrates that the ZBA did not make specific factual findings supporting its determination]; Matter of East Coast Properties

v City of Oneida Planning Board, 167 AD2d 641 [3d Dept 1990]).^[FN5] [*5]

Specifically, as the Village Attorney stated in his letter of July 15, 2011, just one week after the final hearing wherein the variances were denied, "the Board, after considering lay and expert testimony, concluded that there is a lack of suitable on street and off street parking under our Village Code to accommodate this application" (Ex. "AA" to Petition).

Although religious institutions are not exempt from local zoning laws, greater flexibility is required in evaluating an application for religious use than an application for another use and every effort to accommodate the religious use must be made (Matter of Capriola v Wright, 73 AD3d 1043, 1045 [2d Dept 2010]; St. Thomas Malankara Orthodox Church, Inc., Long Island v Board of Appeals, Town of Hempstead, 23 AD3d 666 [2d Dept 2005]).^[FN6] As the Second Department stated in Islamic Society of Westchester and Rockland, Inc. v Foley (96 AD2d 536 [2d Dept 1983]):

A municipality may not deny such a variance to a religious institution on the basis of factors which would justify the exclusion or restriction of commercial establishments, including traffic hazards and decreased enjoyment of neighboring properties (see Matter of Westchester Reform Temple v Brown, 22 NY2d 488, 496; Matter of Diocese of Rochester v Planning Bd. Of Town of Brighton, 1 NY2d 508, 522-523; Matter of Mikveh of South Shore Congregation v Granito, 78 AD2d 855). There is an affirmative duty on the part of a local zoning board to suggest measures to accommodate the planned religious use, without causing the religious institution to incur excessive additional costs, while mitigating the detrimental effects on the health, safety and welfare of the surrounding community.

In Matter of Genesis Assembly of God (208 AD2d 627 [2d Dept 1994]), which is dispositive here, the Second Department stated:

The respondent denied the variance application. The respondent concluded that, because of the intensity of the church's use (four services per week) and the potential for the growth of the congregation or changes in its methods of transportation, there were no measures or conditions that could be imposed to permit the church to operate with almost 50% fewer off-street parking spaces than required. The respondent specifically rejected the petitioner's suggestion that it impose conditions on the use of the basement classroom area, reasoning that, as a practical matter, such conditions would be difficult to enforce.

The petitioner commenced this proceeding, pursuant to CPLR article 78, to annul the respondent's determination. The Supreme Court denied the petition and dismissed the proceeding. The Supreme Court concluded that the respondent's determination was supported by substantial evidence and that it was neither arbitrary nor capricious. We now reverse.

It is well settled that, while religious institutions are not exempt from local zoning laws, greater flexibility is required in evaluating an application for a religious use than an application for another use and every effort to accommodate the religious use must be made (see, Cornell Univ. v Bagnardi, 68 NY2d 583, 595-596; Matter of Westchester Reform Temple v Brown, 22 NY2d 488, 496-497; Matter of Harrison Orthodox Minyan v Town Bd., 159 AD2d 572, 573). It is incumbent upon a local zoning board to suggest measures to accommodate the proposed religious use while mitigating the adverse effects on the surrounding community to the greatest extent possible (see, Matter of Harrison Orthodox Minyan v Town Bd, supra; Matter of Islamic Socy. v Foley, 96 AD2d 536, 537).

Here, the record indicates that the proposed religious use could have been accommodated by granting the variance subject to conditions limiting, inter alia, the number of persons attending services and the number of services or meetings per week (see, Matter of Harrison Orthodox Minyan v Town Bd., supra). Although the respondent relied on these two factors in denying the petitioner's variance application, the respondent apparently did not even consider the possibility of imposing conditions on them. The respondent's determination was therefore arbitrary, capricious, and an abuse of discretion [*7]

Similarly, in Matter of Harrison Orthodox Minyan, Inc. v Town Board of Harrison (159 AD2d 572 [2d Dept 1990]), the Second Department stated:

The record discloses that, notwithstanding the recommendation of one member of the Town Board, who proposed granting the permit upon certain conditions and limitations, a majority of the Town Board voted to deny the permit, without making any attempt to accommodate the proposed religious use. This was improper and constitutes an abuse of the Town Board's discretion, in that the Board ignored its affirmative duty to suggest measures to accommodate the proposed religious use (see, Matter of Islamic Socy. v Foley, supra at 536). Upon our review of the record, we find that the proposed religious use could have been achieved by limiting the number of persons who could attend services or meetings at any given time, and by posting "no parking" signs along the street to prevent hazardous road conditions, and by limiting the hours during which meetings or instruction could be held, in conformity with the petitioner's religious practices.

* * * *

Thus, we have modified the language of the judgment to recite that the Town Board is directed to issue the permit upon such reasonable conditions as will allow the petitioner to establish its house of worship, while mitigating any detrimental or adverse effects on the surrounding community (see, Neddermeyer v Town of Ontario Planning Bd., 155 AD2d 908). Furthermore, given that the Town Board's purported findings of fact are speculative and mere conclusions and contain very little factual matter, we also direct the Town Board to make proper findings of fact upon remittitur (see, Matter of Seaford Jewish Center v Board of Zoning Appeals, 48 AD2d 686) (emphasis added).

A review of the hearing transcripts reveals that the ZBA not only failed to make any suggestions to accommodate the Church but, also, refused to entertain any conditions suggested by the Church. The Church is in a position to rectify the traffic hazards, if any, and has demonstrated its willingness and ability to do so (see Harrison Orthodox Minyan, Inc. v Town Board of Harrison, Supreme Court, Westchester County, Index No. 07896/88 (Silverman, J.) aff'd 159 AD2d 572 [2d Dept 1990]). "Once again, it is the ZBA which has an affirmative duty to suggest measures which will allow a religious use rather than, as in the case here, clinging to any excuse in an effort to deny the religious use" (Id.).

Based on the foregoing and given the ZBA's failure to render a decision containing findings of fact and failure to suggest measures in order to accommodate the religious use, this court finds that the ZBA's determination was arbitrary, capricious, and an abuse of discretion (see St. Thomas Malankara Orthodox Church, Inc., Long Island v Board of Appeals, Town of Hempstead, 23 AD3d at 667, supra).

Accordingly, it is hereby ordered that the petition is granted, to the following extent: the determination is annulled and the matter is remitted to the Village of Hempstead Board of Zoning Appeals for the issuance of both variances subject to such reasonable conditions as will permit the Emmanuel Brethren Assembly to hold religious services and perform related religious [*8]functions on the subject premises while mitigating the detrimental or adverse effects upon the surrounding community to the greatest extent possible. Furthermore, given the absence of any findings of fact to support the ZBA's determination, the ZBA is also directed to make proper findings of fact upon remittur (see Matter of Harrison Orthodox Minyan, Inc. v Town Board of Harrison (159 AD2d at 574, supra).

This constitutes the decision and order of the court.

Dated: December 23, 2011

_____________________________

Hon. Vito M. DeStefano, J.S.C.