Tonyes v. Town of Southold

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Southold dated December 30, 2001, which, after a hearing, granted Louise Ajemian’s application for a waiver of merger, the petitioner Linda M. Tonyes appeals from a judgment of the Supreme Court, Suffolk County (Molia, J.), entered June 21, 2002, which denied the petition and dismissed the proceeding. Ordered that the judgment is affirmed, with costs. “It is axiomatic that the court will not substitute its judgment for that of the board or set it aside unless it clearly appears to be” illegal, arbitrary, an abuse of discretion, or con [808] trary to law (Matter of Fiore v Zoning Bd. of Appeals of Town of Southeast, 21 NY2d 393, 396 [1968]; see Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]). Under the circumstances herein, the interpretation by the Zoning Board of Appeals of the Town of Southold of Southold Town Code § 100-26, entitled “Waiver of Merger,” recognizing and reconstituting lot lines from the original subdivision map, was neither arbitrary nor contrary to law. The appellant’s remaining contentions either are unpreserved for appellate review or without merit. We note that the petitioner Edwin A. Tonyes, Jr., on whose behalf the appeal is also purportedly taken, has not properly appeared in this Court (see CPLR 321 [a]). Feuerstein, J.P., Friedmann, McGinity and Schmidt, JJ., concur.