Josato, Inc. v. Wright

288 A.D.2d 384, 733 N.Y.S.2d 214, 2001 N.Y. App. Div. LEXIS 11321

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 2001
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of Hempstead, dated October 25, 2000, which, after a hearing, denied the petitioner’s application for area variances for two parcels of property, the appeal is from a judgment of the Supreme Court, Nassau County (Davis, J.), dated January 22, 2001, as amended May 24, 2001, which granted the petition for a new hearing on the application, annulled the determination, and remitted the matter to the Board of Zoning Appeals of the Town of Hempstead for further proceedings.

Ordered that the judgment, as amended, is affirmed, without costs or disbursements.

A local zoning board has broad discretion in considering variance applications, and judicial review is limited to ascertaining whether the action taken by the zoning board was illegal, arbitrary and capricious, or an abuse of discretion (see, Matter of Fuhst v Foley, 45 NY2d 441; Matter of Perla v Heller, 251 AD2d 419). The determination of the Board of Zoning Appeals of the Town of Hempstead (hereinafter the ZBA) does not reflect that it considered the five statutory factors set forth in Town Law § 267-b (3) (b). Accordingly, the Supreme Court properly granted the petition, annulled the determination, and remitted the matter to the ZBA for a new determination on the petitioner’s application for area variances (see, Matter of Miller v Zoning Bd. of Appeals, 276 AD2d 633; Matter of Sasso v Osgood, 86 NY2d 374).

Prior applications for area variances for the petitioner’s two parcels of property were made by different applicants before the Town Law was amended to set forth the requirements for an area variance, and involved different proposals for constructing houses on the property. Thus, the doctrine of res judicata is inapplicable to the petitioner’s application (see, Matter of Peccoraro v Humenik, 258 AD2d 465; Kalpin v Accettella, 160 AD2d 909). Santucci, J. P., McGinity, Luciano and Adams, JJ., concur.