IN RE: Christopher MOORE (2006)

In a proceeding, inter alia, pursuant to CPLR article 78 to review a determination of the Town of Islip Zoning Board of Appeals dated August 26, 2003, which denied the petitioner's application for an area variance, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Pitts, J.), entered October 14, 2004, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is reversed, on the law, without costs or disbursements, the petition is granted to the extent that the determination is annulled and the matter is remitted to the Town of Islip Zoning Board of Appeals for further proceedings consistent herewith, and the petition is otherwise denied.

 Contrary to the argument of the Town of Islip Zoning Board of Appeals (hereinafter the Zoning Board), its 1984 denial of a prior owner's area variance application with respect to the subject parcel did not preclude it from granting the instant application (see Matter of Riina v. Baum, 300 A.D.2d 665, 666, 754 N.Y.S.2d 644;  Matter of Josato, Inc. v. Wright, 288 A.D.2d 384, 733 N.Y.S.2d 214;  Matter of Peccoraro v. Humenik, 258 A.D.2d 465, 684 N.Y.S.2d 588;  cf. Matter of Gonzalez v. Zoning Bd. of Appeals of Town of Putnam Val., 3 A.D.3d 496, 498, 771 N.Y.S.2d 142).   While the determination to rehear an application is within the discretion of a zoning board, and a zoning board may refuse to rehear an application in the absence of new facts or a change of circumstances (see Matter of Lee v. Zoning Bd. of Appeals of Town of Putnam Val., 1 A.D.3d 600, 602, 768 N.Y.S.2d 26;  Matter of Falco v. Town of Islip Zoning Bd. of Appeals, 283 A.D.2d 576, 725 N.Y.S.2d 221;  Matter of ELN Realty Corp. v. Zoning Bd. of Appeals of Town of Greenburgh, 261 A.D.2d 619, 620, 690 N.Y.S.2d 700), even when the second application is brought by a different applicant (see Matter of Pettit v. Board of Appeals of Town of Islip, 160 A.D.2d 1006, 1007, 554 N.Y.S.2d 723), a zoning board may not refuse to consider an application with respect to which there has been a substantial change of circumstances since the prior denial (see Matter of Siciliano v. Scheyer, 131 A.D.2d 679, 680, 516 N.Y.S.2d 758).   Here, in light of the factors that must be considered under the balancing test set forth in Town Law § 267-b(3)(b) (see 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, 383, 633 N.Y.S.2d 259, 657 N.E.2d 254), particularly the character of and conditions in the neighborhood (see Town Law § 267-b[3][b][1], [4] ), it was arbitrary and capricious for the Zoning Board to refuse to hear the petitioner's application on the basis of the denial of a variance application with respect to the same property nearly 20 years before. The present application, although similar to the prior application in that it requested variances permitting the construction of a single-family residence on a substandard lot, differed substantially from the prior application in that the present application did not seek permission to construct a two-car garage or to vary the minimum sideyard requirements of the zoning law.

The parties' remaining contentions are either without merit or need not be reached in light of our determination.