Opinion
June 11, 1990
Appeal from the Supreme Court, Nassau County (Morrison, J.).
Ordered that the judgment is reversed, on the law, without costs or disbursements, the petition is granted to the extent of annulling the determination under review, and the matter is remitted to the respondent Board of Zoning and Appeals of the Town of North Hempstead, which is directed to grant the application for area and sideyard variances upon such conditions, if any, as it deems appropriate.
In view of the uncontroverted evidence that the subject parcel has been held in single and separate ownership since prior to the enactment of the pertinent zoning ordinance, the petitioner is entitled to the requested variances as a matter of right (see, Matter of McDermott v. Rose, 148 A.D.2d 615; Matter of MacKay v Mayhall, 92 Misc.2d 868). Thus, the petitioner was not required to show economic hardship (see, Modular Homes Corp. v. Combs, 115 A.D.2d 527), and the Board's determination, which was based upon lack of hardship, was arbitrary, capricious and an abuse of discretion (see, Matter of Fuhst v. Foley, 45 N.Y.2d 441; Modular Homes Corp. v. Combs, supra). Accordingly, the matter is remitted to the Board with the direction that it grant the application upon such conditions as it deems appropriate. Kunzeman, J.P., Harwood, Balletta and O'Brien, JJ., concur.