Opinion
2015-01-2
In the Matter of Michael J. MIMASSI, Petitioner–Appellant, v. TOWN OF WHITESTOWN ZONING BOARD OF APPEALS, Respondent–Respondent.
Douglas H. Zamelis, Cooperstown, for Petitioner–Appellant.William P. Schmitt, Town Attorney, Utica, for Respondent–Respondent.
Judgment reversed, petition granted in part, determination vacated, and matter remitted.
Douglas H. Zamelis, Cooperstown, for Petitioner–Appellant. William P. Schmitt, Town Attorney, Utica, for Respondent–Respondent.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, LINDLEY, and DeJOSEPH, JJ. MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to annul the determination of respondent denying his application for an area variance. We reject petitioner's contention that the determination was arbitrary and capricious because respondent failed to adhere to its precedent. Petitioner failed to establish that respondent's determination on another application was based on essentially the same facts as petitioner's present application ( see Matter of 194 Main, Inc. v. Board of Zoning Appeals for Town of N. Hempstead, 71 A.D.3d 1028, 1030, 897 N.Y.S.2d 208; see generally Matter of Tall Trees Constr. Corp. v. Zoning Bd. of Appeals of Town of Huntington, 97 N.Y.2d 86, 93, 735 N.Y.S.2d 873, 761 N.E.2d 565; Knight v. Amelkin, 68 N.Y.2d 975, 977, 510 N.Y.S.2d 550, 503 N.E.2d 106).
We agree with petitioner, however, that Supreme Court erred in denying the petition. Respondent “was required to weigh the benefit to [petitioner] of granting the variance[ ] against any detriment to the health, safety and welfare of the neighborhood or community affected thereby, taking into account the five factors set forth in Town Law § 267–b (3)(b)” ( Matter of Conway v. Town of Irondequoit Zoning Bd. of Appeals, 38 A.D.3d 1279, 1279–1280, 831 N.Y.S.2d 818; see Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 N.Y.3d 608, 612–613, 781 N.Y.S.2d 234, 814 N.E.2d 404; Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 307–308, 746 N.Y.S.2d 667, 774 N.E.2d 732). Here, respondent based its determination upon factors and other criteria relevant to the former “practical difficulty” test, which is no longer followed, rather than on the factors set forth in Town Law § 267–b (3)(b) ( see Matter of Cohen v. Board of Appeals of Vil. of Saddle Rock, 100 N.Y.2d 395, 402, 764 N.Y.S.2d 64, 795 N.E.2d 619; Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384, 633 N.Y.S.2d 259, 657 N.E.2d 254). Inasmuch as respondent failed to engage in the necessary balancing test, we vacate the determination, and we remit the matter to respondent for a de novo determination ( see Matter of Nye v. Zoning Bd. of Appeals of Town of Grand Is., 81 A.D.3d 1455, 1456, 917 N.Y.S.2d 499; Matter of Fusco v. Russell, 283 A.D.2d 936, 936, 725 N.Y.S.2d 255). We have considered petitioner's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the petition is granted in part, the determination is vacated, and the matter is remitted to respondent for a de novo determination of the application.