
    In the Matter of Robert C. Shepard, Respondent, v Zoning Board of Appeals of the City of Johnstown, Appellant.
   Casey, J.

(concurring in part and dissenting in part). Although we agree that so much of Special Term’s judgment as annulled respondent zoning board of appeals denial of petitioner’s application for a special use permit should be affirmed, we cannot agree with the majority insofar as it holds that the absence of legislatively prescribed standards for the issuance of special permits requires the board to grant unconditionally petitioner’s request for such a permit. Matter of Tandem Holding Corp. v Board of Zoning Appeals of Town of Hempstead (43 NY2d 801), upon which the majority relies to conclude that respondent was powerless to deny petitioner’s special use permit application in the absence of stated standards in the ordinance, concerned an ordinance which, in fact, contained stated standards guiding the administrative body’s consideration of special use applications. The court noted (id., at p 802) that under such circumstances, compliance with those standards must be shown before any special exception can be secured. Citing Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston (30 NY2d 238), the court further noted (43 NY2d, at p 802) that resolution of the problem is “both simpler and different” where the ordinance in question “stated no elaborated standards”. Thus, the guiding principles for resolving cases where, as here, the ordinance fails to provide standards to be considered by the board in determining special use applications must be gleaned from the North Shore case, not the Tandem Holding Corp. case. Significantly, the court in North Shore (supra) did not conclude that the absence of stated standards required the board to grant unconditionally all special use or special exception applications. Rather, it held (30 NY2d, at p 244) that the applicant was entitled to a special exception upon a showing “that the use is contemplated by the ordinance subject only to ‘conditions’ attached to its use to minimize its impact on the surrounding area”. Here, the use proposed by petitioner concededly is contemplated by the ordinance. Accordingly, under the rule set forth in North Shore (supra), the board was required to issue the special use permit, but it could impose “conditions” to minimize the impact of the use on the surrounding area. The board in this case issued a denial of petitioner’s application, giving six reasons for the denial. Since petitioner has carried his burden of showing that the use to which he seeks to put the property is contemplated by the ordinance, the board’s outright denial of the special use permit was erroneous (Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, supra). The appropriate remedy is not, however, an order directing the board to issue an unconditional permit, but rather, the matter should be remitted to the board with directions that it issue the permit subject to any reasonable conditions it deems appropriate (id., at p 246; see, also, Matter of Biener v Incorporated Vil. of Thomaston, 85 AD2d 730; Matter of North Shore Equities v Fritts, 81 AD2d 985, 986). 
      
       The dissent, relying on the case of Matter of North Shore Steak House u Board of Appeals of Inc. Vil. of Thomaston (30 NY2d 238), states that the matter should be remitted to respondent board for imposition of any reasonable conditions on the special use permit as it may deem appropriate. In North Shore Steak House, the zoning ordinance of the Village of Thomaston contained a provision specifically authorizing the zoning board of appeals to grant special permits “ ‘subject to appropriate conditions and safeguards, and in harmony with the general purpose and intent of this ordinance’ ” (id., at p 242). No such provision granting the zoning board of appeals the power to condition special use permits existed in the City of Johnstown’s zoning ordinance at the time petitioner made his application in the instant case. In the absence of any such delegation, respondent was powerless to condition the issuance of a special use permit (cf. Matter of Summit School v Neugent, 82 AD2d 463,466) and Special Term thus correctly ordered that the permit be issued by respondent without conditions.
     
      
       Since the court in Tandem Holding Corp. took care to distinguish North Shore, its statement (43 NY2d 801, 803, supra) that requests for special exceptions need not always be granted subject only to the imposition of reasonable conditions was not intended to overrule North Shore. Rather, the court was recognizing that different tests were to be applied in determining an applicant’s entitlement to a special use permit, depending upon whether the ordinance contained stated standards (see Matter of Miller v Ward, 72 AD2d 565, 566).
     