Probst v. Town of Wheatfield

Judgment unanimously reversed on the law without costs, petition granted in part and matter remitted to respondent Zoning Board of Appeals of Town of Wheatfield for further proceedings in accordance with the following Memorandum: Petitioner commenced this CPLR article 78 proceeding to challenge the determination of respondent Zoning Board of Appeals of Town of Wheatfield (ZBA) denying petitioner’s application for an area 844 variance. Supreme Court erred in dismissing the petition. Respondents concede that the ZBA failed to consider the requisite criteria set forth in Town Law § 267-b (3). We therefore reverse the judgment, grant the petition in part by annulling the determination of the ZBA and remit the matter to the ZBA for a new determination of the application (see, Matter of Zelnick v Small, 268 AD2d 527). (Appeal from Judgment of Supreme Court, Niagara County, Koshian, J. — CPLR art 78.) Present — Pigott, Jr., P. J., Pine, Hurlbutt and Lawton, JJ.