Opinion
March 27, 2001.
April 16, 2001.
In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Appeals of the Incorporated Village of Garden City dated June 22, 1999, which, after a hearing, denied the petitioner's application for a special use permit, the appeal is from a judgment of the Supreme Court, Nassau County (Cozzens, J.), dated March 9, 2000, which granted the petition, annulled the determination, and directed that the permit be issued.
Cullen and Dykman, Garden City, N.Y. (Peter J. Mastagho and Jennifer A. Mulvanerty of counsel), for appellants.
Spellman Walsh, LLP, Garden City, N.Y. (John P. Gibbons, Jr., and Kevin M. Walsh of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., ANITA R. FLORIO, LEO F. McGINITY, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, without costs or disbursements.
The Supreme Court properly found that the denial of the petitioner's application for a special use permit to construct an addition to its service station was arbitrary and capricious ( see, Matter of Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, ____ A.D.2d ____ [2d Dept., Mar. 19, 2001]; Matter of SCI Funeral Servs. of N.Y. v. Planning Bd. of Town of Babylon, 277 A.D.2d 319; Matter of Holbrook Assocs. Dev. Co. v. McGowan, 261 A.D.2d 620), particularly since another service station across the street in the same C-3 commercial district was granted such a permit ( see, Matter of Exxon Corp. v. Board of Stds. Appeals of City of N.Y., 128 A.D.2d 289; Matter of Mason v. Zoning Bd. of Appeals of Town of Clifton Park, 72 A.D.2d 889). In addition, the determination appears to have been impermissibly based, in part, upon the generalized complaints of area residents, which were uncorroborated by any empirical data ( see, Matter of Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000; Matter of Chernick v. McGowan, 238 A.D.2d 586; Matter of Gordon Jack v. Peterson, 230 A.D.2d 856).
The appellants' remaining contentions are without merit.