| Matter of Fagan v Colson |
| 2008 NY Slip Op 02840 [49 AD3d 877] |
| March 25, 2008 |
| Appellate Division, Second Department |
| In the Matter of Michael J. Fagan, Appellant, v Marvin L.Colson et al., Respondents. |
—[*1] Robert Quinlan, Farmingville, N.Y. (David J. Moran of counsel), for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the respondentZoning Board of Appeals of the Town of Brookhaven, dated July 21, 2006, which, after ahearing, denied the petitioner's application for area variances, the petitioner appeals from ajudgment of the Supreme Court, Suffolk County (Spinner, J.), dated June 4, 2007, which deniedthe petition and, in effect, dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
Contrary to the petitioner's contentions, the findings and conclusions of the respondentZoning Board of Appeals of the Town of Brookhaven (hereinafter the Board) were amplysupported by the evidence in the record, and its determination to deny the substantial variancesrequested by the petitioner was not arbitrary and capricious (see Matter of Pecoraro v Boardof Appeals of Town of Hempstead, 2 NY3d 608 [2004]; Matter of Halperin v City ofNew Rochelle, 24 AD3d 768 [2005]; Matter of Tetra Bldrs. v Scheyer, 251 AD2d589 [1998]; Matter of Becvar v Scheyer, 250 AD2d 842 [1998]). The Board properlyconsidered and weighed the factors enumerated in Town Law § 267-b (3) (b) (seeMatter of Sasso v Osgood, 86 NY2d 374 [1995]), and its reliance upon the specific, detailedtestimony of a neighbor of the petitioner which was based on personal knowledge did not renderthe determination the product of generalized and conclusory community opposition (seeMatter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608 [2004];Matter of Ifrah v Utschig, 98 NY2d 304 [2002]; cf. Matter of 450 Sunrise Highway vTown of Oyster Bay, 287 AD2d 714 [2001]; Matter of Necker Pottick, Fox Run WoodsBldrs. Corp. v Duncan, 251 AD2d 333 [1998]). Similarly, the petitioner failed to [*2]present evidence to sustain his burden (see Matter of CampoGrandchildren Trust v Colson, 39 AD3d 746, 749 [2007]) of demonstrating that the Board'sdetermination was inconsistent with a prior determination based on "essentially the same facts"(Matter of North Shore F.C.P., Inc. v Mammina, 22 AD3d 759, 761 [2005]).
The petitioner's remaining contentions are without merit. Mastro, J.P., Dickerson, Belen andChambers, JJ., concur.