WWA Realty Holding, II, LLC v. Board of Zoning Appeals of Lynbrook

19 A.D.3d 504, 796 N.Y.S.2d 257, 2005 N.Y. App. Div. LEXIS 6557

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 2005
• Status: Published

Opinion

In a proceeding pursuant to CPLR Article 78 to review a determination of the Board of Zoning Appeals of the Incorporated Village of Lynbrook dated November 14, 2002, which, inter alia, denied the petitioner’s application for an area variance allowing the maintenance of a flagpole in excess of the Village’s height restriction, the appeal is from a judgment of the Supreme Court, Nassau County (DeMaro, J.), dated February 4, 2004, which granted the petition, vacated the determination, remanded the matter for the issuance of a conditional area variance, and directed the Superintendent of Buildings of the Department of Buildings of the Incorporated Village of Lynbrook to issue the requested permit.

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

Under the particular circumstances of this case, the denial of the requested variance was arbitrary and capricious, and was not supported by substantial evidence (see Matter of Inlet Homes Corp. v Zoning Bd. of Appeals of Town of Hempstead, 2 NY3d 769 [2004]; Matter of Ifrah v Utschig, 98 NY2d 304 [2002]; Matter of Fuhst v Foley, 45 NY2d 441 [1978]; Matter of Action RediMix Corp. v Davison, 292 AD2d 448 [2002]). Accordingly, the Supreme Court properly granted the CPLR article 78 petition. Schmidt, J.P., S. Miller, Santucci and Mastro, JJ., concur.