| Matter of Bull Run Props., LLC v Town of Cornwall Zoning Bd. ofAppeals |
| 2008 NY Slip Op 03003 [50 AD3d 683] |
| April 1, 2008 |
| Appellate Division, Second Department |
| In the Matter of Bull Run Properties, LLC,Appellant, v Town of Cornwall Zoning Board of Appeals,Respondent. |
—[*1] Drake, Loeb, Heller, Kennedy, Gogerty Gaba & Rodd, PLLC, New Windsor, N.Y. (Adam L.Rodd and Stephen J. Gaba of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Town ofCornwall Zoning Board of Appeals dated October 17, 2005, which, after a hearing, denied thepetitioner's application for certain area variances, the petitioner appeals from a judgment of theSupreme Court, Orange County (Slobod, J.), dated August 15, 2006, which denied the petitionand dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
The petitioner sought to subdivide one of its lots into two lots, which required obtaining areavariances from zoning law requirements for lot area, lot width, and front-and rear-yard setbacks.When undivided, the lot was legally nonconforming in that it deviated from the zoning law interms of net area by .39 acres. If divided, the lots would deviate from the requirement for net lotarea by 55% and 64%, respectively. After a public hearing, the Town of Cornwall Zoning Boardof Appeals (hereinafter the ZBA) found that each of the five statutory factors of Town Law§ 267-b (3) (b) weighed against granting the requested variances and consequently, deniedthe application. In reviewing the determination of the ZBA, the Supreme Court found that of thefive statutory factors, only a finding that the requested area variances are substantial wassupported by evidence in the record. Nevertheless, since that factor was a sufficient basis,standing alone, upon which to deny the [*2]requested variances,the Supreme Court denied the petition and dismissed the proceeding.
Local zoning boards have broad discretion in considering applications for variances, andjudicial review is limited to determining whether the action taken by the zoning board wasillegal, arbitrary, or an abuse of discretion (see Matter of Ifrah v Utschig, 98 NY2d 304,308 [2002]; Matter of Filipowski vZoning Bd. of Appeals of Vil. of Greenwood Lake, 38 AD3d 545, 546 [2007]; Matter of Mann v Zoning Bd. of Appeals ofTown of E. Hampton, 34 AD3d 588 [2006]; Matter of DiPaci v Zoning Bd. of Appeals Vil. of Upper Nyack, 4 AD3d354 [2004]). A determination should be sustained upon judicial review if it was not illegal,has a rational basis, and is not arbitrary and capricious (see Matter of Sasso v Osgood, 86NY2d 374, 384 [1995]; Matter of Filipowski v Zoning Bd. of Appeals of Vil. of Greenwood,38 AD3d at 546; Matter of Pietrzak& Pfau Assoc., LLC v Zoning Bd. of Appeals of Town of Wallkill, 34 AD3d 818,818-819 [2006]; Matter of Pasceri vGabriele, 29 AD3d 805 [2006]).
In determining whether to grant an application for an area variance, a zoning board mustengage in a balancing test weighing the benefit to the applicant against the detriment to thehealth, safety, and welfare of the neighborhood or community (see Town Law §267-b [3] [b]; Matter of Sasso v Osgood, 86 NY2d at 384; Matter of Hannett v Scheyer, 37 AD3d603, 604 [2007]). The zoning board must also consider whether (1) an undesirable changewill be produced in the character of the neighborhood or a detriment to nearby properties will becreated if the area variance is granted, (2) the benefit sought by the applicant can be achieved bysome method, feasible to the applicant, other than an area variance, (3) the required area varianceis substantial, (4) the proposed variance will have an adverse effect or impact on physical orenvironmental conditions in the neighborhood or district if it is granted, and (5) the allegeddifficulty was self-created (see Town Law § 267-b [3] [b]; Matter of Ifrah vUtschig, 98 NY2d at 307-308).
Here, a review of the record as a whole (see Matter of Richter v Curran, 5 AD3d 687, 688 [2004]) revealsthat the determination of the ZBA denying the requested variances was not illegal, arbitrary, oran abuse of discretion, and was supported by a rational basis. The petitioner seeks to take one ofits lots, which is already substandard, and subdivide it into two substandard lots. With theexception of the variance from front-yard setback for one of the proposed lots, the variancessought are substantial (see Matter ofPecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 614 [2004]). Inparticular, as stated previously, the variances from net lot area, if granted, would deviate 55%and 64% from the requirements of the zoning law (see Matter of Ifrah v Utschig, 98NY2d at 309; Matter of Ram v Town ofIslip, 21 AD3d 493, 494-495 [2005]; Matter of Ceballos v Zoning Bd. of Appeals ofTown of Mount Pleasant, 304 AD2d 575 [2003]; Matter of Ron Rose Group v Baum,275 AD2d 373 [2000]; Matter of McGlasson Realty v Town of Patterson Bd. of Appeals,234 AD2d 462, 463 [1996]). Moreover, the proposed subdivision would produce anundesirable change in the character of the neighborhood (see Town Law § 267-b[3] [b]). While the petitioner contends that the proposed lots would have a greater gross area thanthose of the surrounding lots, the relevant inquiry is how the proposed lots compare in net area.Based on the maps submitted, the proposed lots would be more than a quarter acre smaller in netarea than even the smallest neighboring lots (see Matter of Stewart v Ferris, 236 AD2d767, 768 [1997]; cf. Matter of Sautner v Amster, 284 AD2d 540, 541 [2001]). Finally,the benefit the petitioner seeks can be achieved through other feasible alternatives (see Matterof Ram v Town of Islip, 21 AD3d at 495). Mastro, J.P., Dickerson, Belen and Chambers, JJ.,concur.