| Matter of Bassano v Town of Carmel Zoning Bd. of Appeals |
| 2008 NY Slip Op 09074 [56 AD3d 665] |
| November 18, 2008 |
| Appellate Division, Second Department |
| In the Matter of John Bassano et al., Respondents, v Townof Carmel Zoning Board of Appeals, Appellant. |
—[*1] Carl F. Lodes, Carmel, N.Y., for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Town ofCarmel Zoning Board of Appeals dated March 23, 2007, which, after a hearing, denied thepetitioners' application for an area variance, the appeal is from a judgment of the Supreme Court,Putnam County (O'Rourke, J.), dated July 24, 2007, which granted the petition, annulled thedetermination, and directed that the variance and all necessary permits to construct asingle-family dwelling on the premises be granted.
Ordered that the judgment is affirmed, with costs.
While local zoning boards have broad discretion in considering variance applications, adetermination cannot be sustained if it lacks a rational basis and is arbitrary and capricious(see Matter of Fuhst v Foley, 45 NY2d 441, 444 [1978]). The decision of "anadministrative agency which neither adheres to its own prior precedent nor indicates its reasonfor reaching a different result on essentially the same facts is arbitrary and capricious"(Knight v Amelkin, 68 NY2d 975, 977 [1986] [citation and internal quotation marksomitted]). Here, the Town of Carmel Zoning Board of Appeals (hereinafter the Board) found, onthree prior occasions, that the variance the petitioners sought would not produce an undesirablechange in the character of the neighborhood or a significant detriment to nearby properties, thatthe benefit sought could not be achieved by other methods, that the variance sought was notsubstantial, and that the variance, if [*2]granted, would not havean adverse effect or impact on the neighborhood. The Board's subsequent decision to deny thepetitioners' application on essentially the same facts without explanation was arbitrary andcapricious, and lacked a rational basis (see Town Law § 267-b [3]; Matter ofCharles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 517 [1985]; Matter of CampoGrandchildren Trust v Colson, 39 AD3d 746 [2007]; Matter of Aliperti v Trotta, 35AD3d 854 [2006]; Matter of Corona Realty Holdings, LLC v Town of N. Hempstead, 32AD3d 393, 395 [2006]).
Accordingly, the Supreme Court properly granted the petition, annulled the determination,and directed that the variance and all necessary permits to construct a single-family dwelling onthe premises be granted. Rivera, J.P., Lifson, Eng and Chambers, JJ., concur.