Bond v. Zoning Board of Appeals of Town of East Hampton

—In a proceeding pursuant to CPLR article 78 to (a) review a determination of the Zoning Board of Appeals of the Town of East Hampton, dated March 3, 1998, which denied the petitioner’s amended application for a natural resources special permit and a wetland setback variance, and (b) direct the Zoning Board of Appeals of the Town of East Hampton to grant the amended application, or, in the alternative, the original, more extensive, application, the Zoning Board of Appeals of the Town of East *613Hampton appeals from so much of a judgment of the Supreme Court, Suffolk County (Lifson, J.), entered March 1, 1999, as granted that branch of the petition which was to annul the determination and directed it to issue the special permit and wetlands setback variance as requested in the amended application, and the petitioner cross-appeals from so much of the same judgment as, in effect, denied that branch of the petition which was to direct the Zoning Board of Appeals of the Town of East Hampton to approve the original application.

Ordered that the judgment is affirmed, without costs or disbursements.

The determination of the Zoning Board of Appeals of the Town of East Hampton (hereinafter ZBA) to deny the petitioner’s amended application for a wetlands setback variance and a natural resources special permit was arbitrary and capricious and not supported by substantial evidence (see, Town Law § 267-b [3] [b]; Matter of Sasso v Osgood, 86 NY2d 374; Matter of Lahey v Kelly, 71 NY2d 135; Matter of Fuhst v Foley, 45 NY2d 441), and it was properly annulled. However, the petitioner waived her right to seek approval of the original, more extensive, application by submitting a modified application to the ZBA for its consideration. O’Brien, J. P., Santucci, Thompson and Feuerstein, JJ., concur.