Dueger v. Zoning Board of Appeals of the Inc. Village of Lloyd Harbor

96 A.D.2d 905, 466 N.Y.S.2d 82, 1983 N.Y. App. Div. LEXIS 19515

Opinion

— In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Incorporated Village of Lloyd Harbor denying the petitioners’ application for an area variance, the appeal is from a judgment of the Supreme Court, Suffolk County (Jones, J.), dated September 23, 1982, which (1) annulled the board’s determination and (2) directed that the area variance be granted. Judgment reversed, on the law, without costs or disbursements, determination confirmed and proceeding dismissed on the merits. Although a grant of the variance in issue here would have constituted an appropriate exercise of discretion by the zoning board of appeals, we cannot say that on this record the board’s denial of the variance was arbitrary, capricious or unsupported by substantial evidence. Indeed, the primary practical difficulty relied on by the petitioners on this appeal is the fact that they will lose $15,000 if the variance is denied. Since it does seem possible to solve petitioners’ dilemma by moving the deck in question so that it complies with the zoning ordinance, we are constrained to reverse and reinstate the board’s denial of the variance. Lazer, J. P., Mangano, Gulotta and Niehoff, JJ., concur.