IN RE: Vito CASSANO (1999)

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Incorporated Village of Bayville filed July 18, 1995, which, after a hearing, denied the petitioner's application for an area variance, the petitioner appeals from a judgment of the Supreme Court, Nassau County (DiNoto, J.), entered June 12, 1998, which denied the petition and dismissed the proceeding.

ORDERED that judgment is reversed, on the law, without costs or disbursements, the petition is granted, the determination is annulled, and the matter is remitted to the respondents for the issuance of the area variance.

The petitioner is the owner of a two-story home located at 18 Fifth Street in the Incorporated Village of Bayville (hereinafter the Village).   After constructing an open, elevated, wooden deck measuring approximately six feet by twelve feet adjacent to the side of his house, he learned that the deck violated the Village zoning code with regard to the setback requirements.   Thus, he applied for an area variance.

The petitioner's application for an area variance was rejected on the grounds that (a) the deck was detrimental to the surrounding properties and had caused an undesirable change to the neighborhood, (b) the variance requested was substantial, and (c) the difficulty was self-created (see, Village Law § 7-712-b[3];  Town Law § 274-b[3] ).   Thereafter, the petitioner commenced this proceeding, alleging, inter alia, that this determination was arbitrary and capricious because many of the houses in the neighborhood had similar decks with similarly deficient setbacks.   We agree.

The petitioner showed that at least nine houses in his immediate neighborhood, including the house next door to his, had similar decks with similarly deficient setbacks.   In these circumstances, it was an abuse of discretion to deny the requested variance.   Accordingly, the determination denying the variance is reversed and the petition is granted (see, Baker v. Brownlie, 248 A.D.2d 527, 670 N.Y.S.2d 216).

In light of this determination, we need not reach the parties' remaining contentions.

MEMORANDUM BY THE COURT.