Opinion
October 3, 1977
In a proceeding pursuant to CPLR article 78 to review respondent-appellant's determination, made after a hearing, which denied petitioner's application for an area variance, the appeal is from a judgment of the Supreme Court, Westchester County, dated December 19, 1976, which (1) annulled the determination and (2) directed the issuance of an area variance. Judgment reversed, on the law, without costs or disbursements, and matter remitted to respondent-appellant for a de novo hearing as to "reasons" numbered 2 through 9 set forth in its determination dated July 26, 1976. We agree with Special Term that the first reason assigned for denial of the application by the zoning board, to wit, that the application violated its rules requiring a lapse of six months after denial of a similar application, had been waived. In any event, such issue is moot. We also agree (as to the other reasons for denial assigned by the zoning board) that there was "an appalling lack of evidence or facts adduced at the hearing" (emphasis that of Special Term). However, this requires remission to the zoning board for a de novo hearing (see Matter of Demisay, Inc. v Petito, 30 A.D.2d 663). Damiani, J.P., Shapiro, Mollen and O'Connor, JJ., concur.