Levada v. Board of Zoning Appeals of Inc. Village of Freeport

199 A.D.2d 504, 605 N.Y.S.2d 397, 1993 N.Y. App. Div. LEXIS 12247

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 1993
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Incorporated Village of Free-port dated October 31, 1990, which denied the petitioner’s application for a finding that a birthing center was a permitted use within a Business A zoning district, the appeal is from a judgment of the Supreme Court, Nassau County (Morrison, J.), dated May 13, 1991, which vacated the determination and directed the Zoning Board of Appeals to issue a determination that the use of the petitioner’s property as a birthing center is a permitted use.

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

The petitioner requested permission from the Building Department of the Village of Freeport to convert a two-family dwelling located in a Business A zoning district into a birthing center. The Building Department denied the petitioner’s request, finding that a birthing center is not a specifically permitted use under the Village of Freeport Code.

The petitioner then applied to the Board of Zoning Appeals for a finding that the use of the property as a birthing center was a permitted use. The Village of Freeport Code permits medical offices, professional buildings, nursing homes, convalescence homes, and ”[a]ll other uses which in the opinion of the Board of Appeals * * * are of the same general character as those specifically permitted” (Village of Freeport Code § 210-70 [C]; § 210-29 [F]; § 210-45 [C]; § 210-58 [B]). The Board of Zoning Appeals, after a hearing, denied the petitioner’s application, upon its finding that a birthing center was not of the same general character as a permitted use.

A zoning board’s decision will be sustained if it has a rational basis and is supported by substantial evidence (see, Matter of Fuhst v Foley, 45 NY2d 441; Consolidated Edison Co. v Hoffman, 43 NY2d 598). In the present case, the reasons stated by the Board of Zoning Appeals for denying the petitioner’s application are not supported by substantial evidence. Accordingly, the judgment directing it to issue a determination that a birthing center is a permitted use is affirmed. Contrary to the appellants’ contention, it is not necessary to remit the matter to the Board of Zoning Appeals for additional fact finding, since its determination included findings of fact sufficient to permit informed judicial review. Thompson, J. P., Balletta, O’Brien and Santucci, JJ., concur.