Opinion
March 8, 1971
In a proceeding pursuant to article 78 of the CPLR to review appellants' determination, dated October 8, 1969, denying petitioner's application for an area and frontage zoning variance, the appeal is by the Board of Appeals of the Town of Hempstead, as limited by its brief, from so much of a judgment of the Supreme Court, Nassau County, entered March 30, 1970, as, on reargument, adhered to the court's original decision and annulled the board's determination and directed the board to grant the variance. Judgment reversed insofar as appealed from, on the law, with costs; petition dismissed on the merits; and board's determination confirmed. In our opinion, Special Term erred when it annulled the board's determination and directed it to grant the variance. Petitioner had not sought a court review of the board's prior determination denying her application for a variance and there was no change of facts or circumstances between that prior determination and petitioner's present application for a variance on the same grounds. Hence, the board's present determination to adhere to that prior decision consequently was not arbitrary or unreasonable ( Matter of Shields v. Martin, 13 A.D.2d 697; Acro Chem. Co. v. Volz, 231 N.Y.S.2d 45; Matter of Caper v. Parker, 271 App. Div. 839; Matter of Riker v. Board of Standards and Appeals of City of N.Y., 225 App. Div. 570; cf. Ellard v. Finkelstein, 84 N.Y.S.2d 220; Matter of Reed v. Board of Standards and Appeals of City of N.Y., 255 N.Y. 126, 133; Ellsworth Realty Co. v. Kramer, 268 App. Div. 824). In addition, on this record we believe there was ample basis for the board's denial of a variance and that on the merits its determination was not arbitrary or unreasonable ( Matter of 113 Hillside Ave. Corp. v. Zaino, 27 N.Y.2d 258; Contino v. Incorporated Vil. of Hempstead, 27 N.Y.2d 701). Munder, Acting P.J., Martuscello, Shapiro, Christ and Benjamin, JJ., concur.