Unal v. Peterson

261 A.D.2d 551, 690 N.Y.S.2d 645, 1999 N.Y. App. Div. LEXIS 5456

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the Town Board of the Town of Hempstead, dated February 5, 1997, which denied an application for a special exception use permit to convert a building into a convenience store in conjunction with the existing self-service gasoline station, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Bucaria, J.), entered March 19, 1998, which dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The reviewing court in a proceeding pursuant to CPLR article 78 will not substitute its judgment for that of the local Town Board unless it clearly appears to be arbitrary, capricious, or contrary to the law (see, Matter of Baker v Brownlie, 248 AD2d 527; Matter of Tarantino v Zoning Bd. of Appeals, 228 AD2d 511; Matter of Frisenda v Zoning Bd. of Appeals, 215 AD2d 479; Matter of Brucia v Planning Bd., 157 AD2d 657). In this case, we find that the denial of the petitioner’s application was rationally based and, accordingly, the proceeding was properly dismissed (see, Matter of Fuhst v Foley, 45 NY2d 441; Matter of Tarantino v Zoning Bd. of Appeals, supra).

The petitioner’s remaining contentions are without merit. S. Miller, J. P., O’Brien, Ritter and Santucci, JJ., concur.