Burger King Corp. v. Furey

84 A.D.2d 788, 444 N.Y.S.2d 25, 1981 N.Y. App. Div. LEXIS 15979

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the Incorporated Village of Valley Stream, dated October 27,1980 and made after a public hearing, which denied petitioner’s application for permission to install a “drive-thru window” as an accessory use to a business it operates in a retail business district. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. On this record, the board of trustees was warranted in concluding that “[t]he hearing failed to produce any credible evidence that the applicant could avoid or adequately eliminate the problems of increased air pollution, spill-back of waiting vehicles onto Merrick Road, increased hazard to pedestrian traffic, or the grid lock of traffic at [the] Fletcher Avenue entrance that would justify exception from the prohibition in the Village Code.” Where a board has reserved to itself the right of decision without precluding itself from considering factors not expressly set forth in the ordinance, the question of whether a permit should issue is left to its untrammeled discretion, so long as it is not exercised arbitrarily or capriciously. (Matter of 4M Club v Andrews, 11 AD2d 720.) Where a board determination is neither arbitrary nor capricious, the court may not substitute its judgment therefor. (Matter of Lemir Realty Corp. v Larkin, 19 AD2d 1005, affd 11 NY2d 20.) Accordingly, the determination of the board herein must be confirmed. Hopkins, J.P., Rabin, Cohalan and O’Connor, JJ., concur.