| Matter of Kraut v Board of Appeals of Vil. of Scarsdale |
| 2007 NY Slip Op 06684 [43 AD3d 923] |
| September 11, 2007 |
| Appellate Division, Second Department |
| In the Matter of Daniel Kraut et al., Respondents, v Boardof Appeals of Village of Scarsdale, Appellant. |
—[*1] Stephens, Baroni, Reilly & Lewis, LLP, White Plains, N.Y. (Gerald D. Reilly of counsel), forrespondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Board ofAppeals of the Village of Scarsdale dated March 9, 2005, which, after a hearing, denied thepetitioners' application for an area variance, the appeal is from a judgment of the Supreme Court,Westchester County (DiBella, J.), entered December 15, 2005, which granted the petition andannulled the determination.
Ordered that the judgment is reversed, on the law, with costs, the petition is denied and theproceeding dismissed on the merits.
In determining whether to grant an area variance, a zoning board must engage in a balancingtest weighing the benefit to the applicant against the detriment to the health, safety, and welfareof the neighborhood or community (see Village Law § 7-712-b [3] [b]; Matterof Sasso v Osgood, 86 NY2d 374, 384 [1995]; Matter of Martino v Board of Zoning Appeals of Inc. Vil. of Great NeckPlaza, 26 AD3d 382 [2006]). The zoning board must also consider whether (1) anundesirable change will be produced in the character of the neighborhood or a detriment tonearby properties will be created by the granting of the area variance, (2) the benefit sought bythe applicant can be achieved by some method, feasible for the applicant to pursue, other than anarea variance, (3) the requested area variance is substantial, (4) the proposed variance will havean adverse effect or impact on the [*2]physical or environmentalconditions in the neighborhood or district if it is granted, and (5) the alleged difficulty wasself-created (see Village Law § 7-712-b [3] [b]; Matter of Sasso v Osgood,supra; Matter of Martino v Board of Zoning Appeals of Inc. Vil. of Great Neck Plaza,supra).
Here, the Board of Appeals of the Village of Scarsdale engaged in the required balancing testand considered the relevant statutory factors. Contrary to the petitioners' contentions, the denialof the application for an area variance had a rational basis and was not arbitrary or capricious.The requested variance was substantial and, because of the location of the subject real property,the variance would have had a detrimental effect on the character of the neighborhood.Moreover, the alleged difficulty was self-created (see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2NY3d 608 [2004]; Matter ofCorigliano v Zoning Bd. of Appeals of City of New Rochelle, 18 AD3d 750 [2005]; Matter of DeJosia v Trotta, 11 AD3d534 [2004]). Accordingly, the Supreme Court should have denied the petition and dismissedthe proceeding. Schmidt, J.P., Crane, Krausman and Dickerson, JJ., concur.