Matter of Amdurer v. Village of New Hempstead Zoning Bd. of Appeals , 146 A.D.3d 878 ( 2017 )

Matter of Amdurer v Village of New Hempstead Zoning Bd. of Appeals (2017 NY Slip Op 00300)

Matter of Amdurer v Village of New Hempstead Zoning Bd. of Appeals

2017 NY Slip Op 00300

Decided on January 18, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 18, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
L. PRISCILLA HALL
SANDRA L. SGROI
COLLEEN D. DUFFY, JJ.

2014-11626
(Index No. 247/14)

[*1]In the Matter of Leonard S. Amdurer, et al., petitioners-respondents,

v

Village of New Hempstead Zoning Board of Appeals, respondent, Binyamin Amona, respondent-appellant.

Kevin T. Conway, Spring Valley, NY, for respondent-appellant.

Bernard Weinreb, Spring Valley, NY, for petitioners-respondents.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Village of New Hempstead Zoning Board of Appeals dated January 15, 2014, which, after a hearing, granted the application of Binyamin Amona for area variances, Binyamin Amona appeals from a judgment of the Supreme Court, Rockland County (Alfieri, J.), dated September 19, 2014, which granted the petition and annulled the determination.

ORDERED that the judgment is affirmed, with costs.

On January 15, 2014, after a hearing, the Village of New Hempstead Zoning Board of Appeals (hereinafter the Zoning Board) approved the application of Binyamin Amona for area variances. These variances permitted him to subdivide a parcel he owned into two substandard lots, and to construct a two-family residence on each lot. In February 2014, the petitioners commenced this CPLR article 78 proceeding to review the Zoning Board's determination on the ground that it was arbitrary and capricious, because the Zoning Board failed to properly distinguish the subject application from a substantially similar prior application, made as to the same parcel, which the Zoning Board had denied in 2010. The Supreme Court granted the petition and annulled the determination, and Amona appeals.

"A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious" (Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 516, 517; see Matter of Campo Grandchildren Trust v Colson, 39 AD3d 746; Matter of Civic Ass'n of the Setaukets v Trotta, 8 AD3d 482, 483). Where it is shown that a zoning board has reached contrary results on substantially similar facts, an explanation is required (see Matter of 194 Main, Inc. v Board of Zoning Appeals for Town of N. Hempstead, 71 AD3d 1028; Matter of Nozzleman 60, LLC v Village of Cold Spring Zoning Bd. of Appeals, 34 AD3d 682, 683). Here, the Zoning Board's failure to set forth a factual basis as to why it was departing from its prior precedent rendered its [*2]determination arbitrary and capricious (see Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d at 516). Accordingly, the Supreme Court properly granted the petition and annulled the determination.

LEVENTHAL, J.P., HALL, SGROI and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court