IN RE: Josephine ALIPERTI

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Josephine ALIPERTI, respondent, v. Frank C. TROTTA, etc., et al., appellants.

Decided: December 26, 2006

ROBERT W. SCHMIDT, J.P., GABRIEL M. KRAUSMAN, REINALDO E. RIVERA, and ROBERT A. SPOLZINO, JJ. Robert F. Quinlan, Town Attorney, Farmingville, N.Y. (J. Lee Snead of counsel), for appellants. Scheyer & Jellenik, Nesconset, N.Y. (Richard I. Scheyer of counsel), for respondent.

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Brookhaven dated August 8, 2003, which, after a hearing, denied the petitioner's application for an area variance, the appeal is from a judgment of the Supreme Court, Suffolk County (Henry, J.), entered August 8, 2005, which granted the petition, annulled the determination, and remitted the matter to the Zoning Board Appeals of the Town of Brookhaven to issue the area various.

ORDERED that the judgment is affirmed, with costs.

 In determining whether to grant an area variance, a zoning board is required by Village Law § 7-712-b(3) to engage in a balancing test “weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted” (Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 307, 746 N.Y.S.2d 667, 774 N.E.2d 732;  see Matter of Sasso v. Osgood, 86 N.Y.2d 374, 633 N.Y.S.2d 259, 657 N.E.2d 254;  Matter of CFS Realty Corp. v. Board of Zoning Appeals of Town of N. Hempstead, 7 A.D.3d 705, 776 N.Y.S.2d 834).   A decision by a zoning board of appeals which neither adheres to its prior precedent nor sets forth its reasons for reaching a different result on essentially the same facts is arbitrary and capricious (see Matter of Charles A. Field Delivery Serv., 66 N.Y.2d 516, 520, 498 N.Y.S.2d 111, 488 N.E.2d 1223;  Matter of Civic Assn. of the Setaukets v. Trotta, 8 A.D.3d 482, 483, 778 N.Y.S.2d 524;  Matter of Frisenda v. Zoning Bd. of Appeals of Town of Islip, 215 A.D.2d 479, 480, 626 N.Y.S.2d 263;  Matter of Spandorf v. Board of Appeals of Vil. of East Hills, 167 A.D.2d 546, 547, 562 N.Y.S.2d 215).

 The Zoning Board of Appeals of the Town of Brookhaven (hereinafter the Zoning Board) granted an application made by the petitioner in 2001 for an area variance, which allowed, inter alia, the subject property to be divided into two 60 x 100-foot parcels (Parcel A and Parcel B), and the construction of a one-family dwelling with a 910 square-foot second story on Parcel B.   After construction of an identical residence on Parcel A was 85% complete, the petitioner applied for a building permit.   At that time, she was informed that an area variance was required inasmuch as the enlarged second story was violative of Town Code § 85-372(C), which provides that a 600 square-foot second story is the maximum size permitted on a residential structure constructed on a parcel less than 70 feet wide.   The petitioner thereafter applied for an area variance, which was denied by the Zoning Board.

Contrary to the Zoning Board's contention, it articulated no rational basis for reaching a different result on essentially the same facts.   Accordingly, the Supreme Court properly annulled the determination and remitted the matter to the Zoning Board to issue the area variance.

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