Opinion
November 16, 1981
Proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the Incorporated Village of Valley Stream, dated October 27, 1980 and made after a public hearing, which denied petitioner's application for permission to install a "drive-thru window" as an accessory use to a business it operates in a retail business district. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. On this record, the board of trustees was warranted in concluding that "[t]he hearing failed to produce any credible evidence that the applicant could avoid or adequately eliminate the problems of increased air pollution, spill-back of waiting vehicles onto Merrick Road, increased hazard to pedestrian traffic, or the grid lock of traffic at [the] Fletcher Avenue entrance that would justify exception from the prohibition in the Village Code." Where a board has reserved to itself the right of decision without precluding itself from considering factors not expressly set forth in the ordinance, the question of whether a permit should issue is left to its untrammeled discretion, so long as it is not exercised arbitrarily or capriciously. (Matter of 4M Club v. Andrews, 11 A.D.2d 720.) Where a board determination is neither arbitrary nor capricious, the court may not substitute its judgment therefor. (Matter of Lemir Realty Corp. v. Larkin, 19 A.D.2d 1005, affd 11 N.Y.2d 20.) Accordingly, the determination of the board herein must be confirmed. Hopkins, J.P., Rabin, Cohalan and O'Connor, JJ., concur.