IN RE: 194 MAIN

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

IN RE: 194 MAIN, INC., appellant, v. BOARD OF ZONING APPEALS FOR TOWN OF NORTH HEMPSTEAD, respondent.

Decided: March 23, 2010

MARK C. DILLON, J.P., ANITA R. FLORIO, HOWARD MILLER, and LEONARD B. AUSTIN, JJ. Jaspan Schlesinger, LLP, Garden City, N.Y. (Steven R. Schlesinger, Laurel R. Kretzing, and John C. Farrell of counsel), for appellant. Richard S. Finkel, Town Attorney, Manhasset, N.Y. (Linda B. Zuech of counsel), for respondent.

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Zoning Appeals for the Town of North Hempstead dated April 16, 2008, which, after a hearing, denied the petitioner's application, inter alia, for a use variance, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Spinola, J.), entered January 5, 2009, which, in effect, denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

The petitioner purchased property located at 194 Main Street in Port Washington (hereinafter the property) on September 20, 2005.   The property had been zoned “Residence C” in 1966.   Before the petitioner purchased the property, an antique furniture store was operated on the property pursuant to a use variance granted to a prior owner in 2002.   After the petitioner purchased the property, it used the property for the sale, storage, and display of motorcycles until the Town of North Hempstead sent it a notice of violation based on its nonpermitted use at the property.   The Board of Zoning Appeals for the Town of North Hempstead (hereinafter the Zoning Board) denied the petitioner's subsequent application for, inter alia, a use variance to permit it to operate a motorcycle sales, storage, and display store on the property.

 “To qualify for a use variance premised upon unnecessary hardship there must be a showing that (1) the property cannot yield a reasonable return if used only for permitted purposes as currently zoned, (2) the hardship resulted from unique characteristics of the property, (3) the proposed use would not alter the character of the neighborhood, and (4) the alleged hardship was not self-created” (Matter of Miller Family Ltd. Partnership v. Trotta, 23 A.D.3d 389, 389-390, 806 N.Y.S.2d 74;  see Town Law § 267-b[2][b];  Matter of Village Bd. of Vil. of Fayetteville v. Jarrold, 53 N.Y.2d 254, 257, 440 N.Y.S.2d 908, 423 N.E.2d 385).

 The evidence adduced during the hearing before the Zoning Board established that the petitioner created the hardship by purchasing the land with knowledge that it was not zoned for commercial use (see Matter of Clark v. Board of Zoning Appeals of Town of Hempstead, 301 N.Y. 86, 89, 92 N.E.2d 903, cert. denied 340 U.S. 933, 71 S.Ct. 498, 95 L.Ed. 673;  Matter of Miller Family Ltd. Partnership v. Trotta, 23 A.D.3d at 390, 806 N.Y.S.2d 74;  Matter of Friends of Lake Mahopac v. Zoning Bd. of Appeals of Town of Carmel, 15 A.D.3d 401, 402-403, 790 N.Y.S.2d 470).   Contrary to the petitioner's position, the fact that a use variance was granted to the prior owner for the use of an antique furniture store could not have lead to a reasonable expectation by the petitioner that it could operate a motorcycle sales, storage, and display store under the prior use variance (see Matter of P.M.S. Assets v. Zoning Bd. of Appeals of Vil. of Pleasantville, 98 N.Y.2d 683, 685, 746 N.Y.S.2d 440, 774 N.E.2d 204;  Matter of McDonald v. Zoning Bd. of Appeals of Town of Islip, 31 A.D.3d 642, 642-643, 819 N.Y.S.2d 533;  Matter of Diana v. City of Amsterdam Zoning Bd. of Appeals, 243 A.D.2d 939, 940, 664 N.Y.S.2d 634).

 Furthermore, although “ ‘a [determination] of an administrative agency 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' ” (Matter of London v. Zoning Bd. of Appeals of Town of Huntington, 49 A.D.3d 739, 740, 855 N.Y.S.2d 561, quoting 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 [internal quotation marks omitted] ), the evidence at the hearing established that the circumstances of the prior variance granted by the Zoning Board were distinguishable from the petitioner's application, and, therefore, the Zoning Board was not bound by its earlier determination (see Matter of Arata v. Morelli, 40 A.D.3d 991, 993, 836 N.Y.S.2d 292;  Matter of Conversions for Real Estate, LLC v. Zoning Bd. of Appeals of Inc. Vil. of Roslyn, 31 A.D.3d 635, 636, 818 N.Y.S.2d 298).

The petitioner's remaining contentions are without merit.

Accordingly, the Supreme Court properly found that the Zoning Board did not act arbitrarily or capriciously when it denied the petitioner's application (see Matter of Westbury Laundromat, Inc. v. Mammina, 62 A.D.3d 888, 891, 879 N.Y.S.2d 188;  Matter of Miller Family Ltd. Partnership v. Trotta, 23 A.D.3d at 390, 806 N.Y.S.2d 74).

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