| Matter of Allstate Props., LLC v Board of Zoning Appeals of Vil. ofHempstead |
| 2008 NY Slip Op 02142 [49 AD3d 636] |
| March 11, 2008 |
| Appellate Division, Second Department |
| In the Matter of Allstate Properties, LLC,Appellant, v Board of Zoning Appeals of the Village of Hempstead,Respondents. |
—[*1] Debra Urbano-DiSalvo, Village Attorney, Hempstead, N.Y. (Herbert J. Tamres of counsel),for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Board ofZoning Appeals of the Village of Hempstead dated September 7, 2006, which, after a hearing,denied the petitioner's application for area variances, the petitioner appeals from a judgment ofthe Supreme Court, Nassau County (Parga, J.), entered March 2, 2007, which denied the petitionand, in effect, dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
Local zoning boards are vested with broad discretion in reviewing applications for areavariances and, as such, judicial review is limited to determining whether the action taken by azoning board was arbitrary and capricious, illegal, or an abuse of discretion (see Matter of Pecoraro v Board of Appealsof Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Martino v Board of Zoning Appeals of Inc. Vil. of Great NeckPlaza, 26 AD3d 382, 383 [2006]). A determination of a zoning board should be upheldif it has a rational basis and is not arbitrary and capricious (see Matter of Pecoraro v Board ofAppeals of Town of Hempstead, 2 NY3d at 613).
When determining whether to grant an application for an area variance, a Village zoningboard of appeals, pursuant to Village Law § 7-712-b (3), must engage in a balancing testweighing the benefit to the applicant against the detriment to the health, safety, and welfare of the[*2]neighborhood or community if the variance is granted (see Matter of Rivero v Voelker, 38AD3d 784, 785 [2007]). The zoning board must also consider whether: (1) an undesirablechange will be produced in the character of the neighborhood, or a detriment to nearby propertieswill be created by the granting of the area variance, (2) the benefit sought by the applicant can beachieved by some other method, other than an area variance, feasible for the applicant to pursue,(3) the required area variance is substantial, (4) the proposed variance will have an adverse effector impact on the physical or environmental conditions in the neighborhood or district, and (5) thealleged difficulty was self-created (see Village Law § 7-712-b [3] [b]; Matter of Rivero v Ferraro, 23 AD3d479, 479-480 [2005]).
Here, the respondent Board of Zoning Appeals of the Village of Hempstead (hereinafter theBoard) engaged in the required balancing test and considered the relevant statutory factors.Among other factors weighing against the granting of the variances, the Board noted that thepetitioner could make a substantial profit from selling the property even without the requestedvariances, and that the petitioner's need for the variances was self-created. In addition, it isapparent from the record that the petitioner was requesting variances which would result in lotswith area and frontage 20% less than required by the applicable zoning provisions, in aneighborhood where most of the properties conformed with the zoning code, and those that didnot generally predated the Village's enactment of the zoning code by several decades. Under suchcircumstances, the determination of the Board to deny the variances was rational and notarbitrary or capricious (see Matter ofPecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613-614 [2004];Matter of Cowan v Kern, 41 NY2d 591, 595-596 [1977]; Matter of Josato, Inc. v Wright, 35AD3d 470, 471 [2006]; Matter ofDiPaci v Zoning Bd. of Appeals Vil. of Upper Nyack, 4 AD3d 354, 354-355 [2004];Matter of Weisman v Zoning Bd. of Appeals of Vil. of Kensington, 260 AD2d 487, 488[1999]). Accordingly, the Supreme Court properly denied the petition and, in effect, dismissedthe proceeding. Prudenti, P.J., Miller, Dillon and McCarthy, JJ., concur.