IN RE: Nora LUCAS (2008)

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Board of Appeals of Village of Mamaroneck dated May 9, 2006, which granted the application of Benmar Properties, LLC, for an area variance in connection with a proposed subdivision of property, (1) Benmar Properties, LLC, appeals, as limited by its brief, and the Board of Appeals of Village of Mamaroneck, Mauro Gabriele, George Mgrditchian, Peter Jackson, Gregory Sullivan, and Clark Neuringer separately appeal, as limited by their brief, from so much of an order and judgment (one paper) of the Supreme Court, Westchester County (Lippman, J.), entered January 10, 2007, as granted the petition and annulled the determination, and (2) the Board of Appeals of Village of Mamaroneck, Mauro Gabriele, George Mgrditchian, Peter Jackson, Gregory Sullivan, and Clark Neuringer appeal, as limited by their brief, from so much of an order of the same court entered April 17, 2007, as denied the motion of Benmar Properties, LLC, in effect, for leave to reargue its opposition to the petition.

ORDERED that the appeal from the order entered April 17, 2007, is dismissed, without costs or disbursements;  and it is further,

ORDERED that the order and judgment entered January 10, 2007, is affirmed insofar as appealed from, without costs or disbursements;  and it is further,

 The appeal from the order entered April 17, 2007, must be dismissed.   The appellants Board of Appeals of Village of Mamaroneck, Mauro Gabriele, George Mgrditchian, Peter Johnson, Gregory Sullivan, and Clark Neuringer are not aggrieved by the denial of the motion of Benmar Properties, LLC, in effect, for leave to reargue (see CPLR 5511).   Moreover, an order denying a motion for leave to reargue is not appealable (see Maroney v. Hawkins, 50 A.D.3d 862, 855 N.Y.S.2d 667).

 On February 1, 2006, Benmar Properties, LLC (hereinafter Benmar), purchased real property located in a residential zoning district within the Village of Mamaroneck, Westchester County.   The property included a single-family residence.   In February 2006 Benmar applied for a building permit and a subdivision of the property in order to build a second single-family residence.   The Village building inspector denied that application because the proposed second lot did not comply with lot-depth requirements of the zoning district.   Benmar then applied for an area variance in connection with the proposed subdivision.   On May 9, 2006, after a public hearing, the Board of Appeals of Village of Mamaroneck (hereinafter the BOA) granted the application for the area variance.   On or about June 9, 2006, the petitioners commenced the instant CPLR article 78 proceeding to review the BOA's determination, on the ground that it was arbitrary and capricious as the BOA failed to properly distinguish Benmar's application from a virtually identical application that was denied by the BOA in 1991.   On August 30, 2006, Benmar was granted a building permit to build the new single-family residence on the new lot on the property.   In an order and judgment (one paper) entered January 10, 2007, the Supreme Court, inter alia, granted the petition and annulled the BOA's determination (see Matter of Lucas v. Board of Appeals of Vil. of Mamaroneck, 14 Misc.3d 1214(A), 2007 WL 62691).

 “ ‘A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reasons for reaching a different result on essentially the same facts is arbitrary and capricious' ” (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, quoting Knight v. Amelkin, 68 N.Y.2d 975, 977, 510 N.Y.S.2d 550, 503 N.E.2d 106;  see also Matter of Campo Grandchildren Trust v. Colson, 39 A.D.3d 746, 834 N.Y.S.2d 295), and mandates reversal, even if there may otherwise be evidence in the record sufficient to support the determination (see Matter of Campo Grandchildren Trust v. Colson, 39 A.D.3d at 747, 834 N.Y.S.2d 295;  Matter of Corona Realty Holdings, LLC v. Town of N. Hempstead, 32 A.D.3d 393, 395, 820 N.Y.S.2d 102).   Thus, where, as here, a zoning board is faced with an application that is substantially similar to a prior application that had been previously determined, the zoning board is required to provide a rational explanation for reaching a different result (see Matter of Campo Grandchildren Trust v. Colson, 39 A.D.3d at 747, 834 N.Y.S.2d 295;  Matter of Mobil Oil Corp. v. Village of Mamaroneck Bd. of Appeals, 293 A.D.2d 679, 681, 740 N.Y.S.2d 456).   The Supreme Court properly determined that the reasons cited by the BOA to differentiate the instant application from the application denied in 1991 did not support a determination that there was a material change in circumstances sufficient to justify the different result.   As a result, the Supreme Court properly held that the BOA's determination should be annulled as arbitrary and capricious for its failure to follow its 1991 precedent.

 Contrary to Benmar's further contention, the Supreme Court did not err in declining to dismiss this proceeding on the ground that it has been rendered academic.   As the petitioners correctly contend, the proceeding has not been rendered academic despite the apparent substantial completion of the project (see Matter of Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preserv. Commn., 2 N.Y.3d 727, 729, 778 N.Y.S.2d 740, 811 N.E.2d 2).   Under the circumstances, the petitioners acted promptly in commencing the instant proceeding and Benmar was put on notice that if it proceeded with construction, it would do so at its own risk (cf. Matter of Silvera v. Town of Amenia Zoning Bd. of Appeals, 33 A.D.3d 706, 708, 823 N.Y.S.2d 430;  Matter of E & J Sylcox Realty, Inc. v. Town of Newburgh Planning Bd., 12 A.D.3d 445, 446, 783 N.Y.S.2d 819).