Preston v. Board of Zoning Appeals

—In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of North Hempstead dated October 5, 1994, inter alia, denying the petitioners’ application for a renewal of building permits and granting, upon certain conditions, the petitioners’ application for a variance, the Board of Zoning Appeals of the Town of North Hempstead appeals from a judgment of the Supreme Court, Nassau County (Murphy, J.), entered May 22, 1995, which granted the petition, and directed that the petitioners’ building permits be renewed and that the petitioners’ application for a variance be granted without conditions. Ordered that the judgment is affirmed, without costs or disbursements. In reviewing a determination of a zoning board, courts should presume that the decision was correct (see, 2 Anderson, New York Zoning Law and Practice § 26.17 [3d ed]). However, a determination of a zoning board will be set aside if it is arbitrary and capricious (see, e.g., Matter of Frisenda v Zoning Bd. of Appeals, 215 AD2d 479; Matter of Eung Lim-Kim v Zoning Bd. of Appeals, 185 AD2d 346). Based on the record in this case, the determination of the Board of Zoning Appeals of the Town of North Hempstead was properly annulled as arbitrary and capricious. Thompson, J. P., Copertino, Krausman and Plorio, JJ., concur.