McDonald's Service Station, Inc. v. Board of Appeals of Inc. Village of Garden City

282 A.D.2d 604, 722 N.Y.S.2d 898, 2001 N.Y. App. Div. LEXIS 3830

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 16, 2001
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Appeals of the Incorporated Village of Garden City dated June 22, 1999, which, after a hearing, denied the petitioner’s application for a special use permit, the appeal is from a judgment of the Supreme Court, Nassau County (Cozzens, J.), dated March 9, 2000, which granted the petition, annulled the determination, and directed that the permit be issued.

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

The Supreme Court properly found that the denial of the petitioner’s application for a special use permit to construct an addition to its service station was arbitrary and capricious (see, Matter of Retail Prop. Trust v Board of Zoning Appeals, 281 AD2d 549; Matter of SCI Funeral Servs. v Planning Bd., 277 AD2d 319; Matter of Holbrook Assocs. Dev. Co. v McGowan, 261 AD2d 620), particularly since another service station across the street in the same C-3 commercial district was granted such a permit (see, Matter of Exxon Corp. v Board of Stds. & Appeals, 128 AD2d 289; Matter of Mason v Zoning Bd. of Appeals, 72 AD2d 889). In addition, the determination appears to have been impermissibly based, in part, upon the generalized complaints of area residents, which were uncorroborated by any empirical data (see, Matter of Twin County Recycling Corp. v Yevoli, 90 NY2d 1000; Matter of Chernick v McGowan, 238 AD2d 586; Matter of Gordon & Jack v Peterson, 230 AD2d 856).

The appellants’ remaining contentions are without merit. O’Brien, J. P., Florio, McGinity and H. Miller, JJ., concur.