| Matter of Muth v Scheyer |
| 2008 NY Slip Op 04523 [51 AD3d 799] |
| May 13, 2008 |
| Appellate Division, Second Department |
| In the Matter of Veronica Muth, Respondent, v Richard I.Scheyer et al., Appellants. |
—[*1] Eugene L. DeNicola, Sayville, N.Y. (Andrea DeNicola of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Boardof Appeals of the Town of Islip dated October 17, 2005, which, after a hearing, denied thepetitioner's application for area variances, the appeal is from a judgment of the Supreme Court,Suffolk County (Emerson, J.), entered January 22, 2007, which granted the petition, annulled thedetermination, and directed that the variances be granted.
Ordered that the judgment is reversed, on the law, with costs, the determination is confirmed,the petition is denied, and the proceeding is 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 Town Law § 267-b[3] [b]; Matter ofSasso v Osgood, 86 NY2d 374, 384 [1995]). The zoning board must also consider whether(1) an undesirable 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 physical or environmental conditions in the neighborhood ordistrict if it is granted, and (5) the alleged difficulty was self-created (see Town Law§ 267-b [3] [b]; Matter of Sasso v Osgood, 86 NY2d 374, 384 [1995]).[*2]
"The judicial responsibility is to review zoning decisionsbut not, absent proof of arbitrary and unreasonable action, to make them" (Matter of Cowan vKern, 41 NY2d 591, 599 [1977]; Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals, 43AD3d 926 [2007]). Upon judicial review, the general rule is that, absent evidence ofillegality, a court must sustain the determination if it has a rational basis in the record before thezoning board (see Matter of Pecoraro vBoard of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Ifrahv Utschig, 98 NY2d 304, 308 [2002]; Matter of Sasso v Osgood, 86 NY2d at 384).
Here, the Zoning Board of Appeals of the Town of Islip (hereinafter the Board) engaged inthe required balancing test and considered the relevant statutory factors. Contrary to thepetitioner's contentions, the denial of the application for an area variance had a rational basis andwas not arbitrary or capricious. The requested variances were substantial and, because of thelocation and shape of the subject real property and the variances previously granted for theexisting structures, approval of additional variances would have had a detrimental effect on thecharacter of the neighborhood (see Matter of Cowan v Kern, 41 NY2d at 596; Matter of Kraut v Board of Appeals of Vil.of Scarsdale, 43 AD3d 923, 924 [2007]). Moreover, the Board provided a rationalexplanation for reaching a result in the instant matter different from a prior determinationgranting area variances for lots in another subdivision across the street from the subject property(see Matter of Berk v McMahon, 29AD3d 902, 903 [2006]). Accordingly, the Supreme Court should have denied the petitionand dismissed the proceeding on the merits. Mastro, J.P., Ritter, Carni and McCarthy, JJ.,concur.