On January 15, 2014, respondent Village of New Hempstead Zoning Board of Appeals (“ZBA”) granted area variances permitting the applicant (respondent Binyamin Amona, henceforth “Applicant”) to subdivide his parcel into two substandard lots, and construct a two-family residence on each lot.  Petitioners commenced a CPLR Article 78 proceeding to review the allegedly arbitrary and capricious determination, claiming that the Board failed to distinguish the instant application from a substantially similar prior application for the same parcel that the Board denied in 2010.  The trial Court granted the petition and annulled the determination, and the Applicant appealed.

On appeal, the Appellate Division, Second Department noted that the “decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious.” Here, the ZBA reached a different result on substantially similar facts, and thus an explanation is required to justify the departure, however the ZBA failed to offer any such explanation. In the absence of a factual basis for the departure, the Court held that the ZBA’s decision was arbitrary and capricious, and affirmed the lower court’s decision to dismiss the petition and annul the determination.

The case was Amdurer v. Village of New Hempstead Zoning Bd. of Appeals, 2017 WL 189159 (2d Dep’t, January 18, 2017)