| Matter of FNR Home Constr. Corp. v Downs |
| 2008 NY Slip Op 09597 [57 AD3d 540] |
| December 2, 2008 |
| Appellate Division, Second Department |
| In the Matter of FNR Home Construction Corp.,Petitioner, v Christopher Downs et al., Respondents. |
—[*1] Ryan, Brennan & Donnelly LLP, Floral Park, N.Y. (John M. Donnelly of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 to review a determination of the Village of Floral ParkBoard of Appeals dated September 24, 2007, which, after a hearing, denied the petitioner's applicationfor a parking variance.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with costs.
Since 2004 the petitioner has owned a vacant parcel of real property located in the Village ofFloral Park. In 2007 the petitioner applied to the Village of Floral Park Board of Appeals (hereinafterthe Board) for a parking variance in order to develop the property for retail purposes. Because theparcel is located within the Village's B2 business district, the proposed development required eighton-site parking spaces, whereas the petitioner's plan proposed no on-site parking.
After the Board conducted a public hearing, it denied the variance application. The petitionercommenced the instant CPLR article 78 proceeding to annul the determination and obtain the requestedvariance. The Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804 (g).[*2]
Initially, we note that the Supreme Court erred in transferringthe proceeding to this Court pursuant to CPLR 7804 (g) since the determination to be reviewed wasnot made after a hearing held pursuant to direction of law at which evidence was taken (seeCPLR 7803 [4]; Matter of Sasso v Osgood, 86 NY2d 374, 384 n 2 [1995]; Matter of Halperin v City of New Rochelle,24 AD3d 768, 769 [2005]; Matterof Milt-Nik Land Corp. v City of Yonkers, 24 AD3d 446, 447 [2005]; see alsoVillage Law § 7-712-c [4]). Nevertheless, in the interest of judicial economy, we will decidethe case on the merits (see Matter of Silvera vTown of Amenia Zoning Bd. of Appeals, 33 AD3d 706, 707-708 [2006]; Matter ofHalperin v City of New Rochelle, 24 AD3d at 772-773; Matter of Country Glen Assoc. vNewburger, 305 AD2d 594, 595 [2003]). Upon our review, we deny the petition and dismiss theproceeding.
"Courts may set aside a zoning board determination only where the record reveals that the boardacted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalizedcommunity pressure" (Matter of Pecoraro vBoard of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; see Matter of Ifrahv Utschig, 98 NY2d 304, 308 [2002]; Matter of Josato, Inc. v Wright, 35 AD3d 470, 471 [2006]). Adetermination of a zoning board should be sustained on judicial review if it has a rational basis and issupported by the evidence in the record (see Matter of Ifrah v Utschig, 98 NY2d at 308;Matter of Fuhst v Foley, 45 NY2d 441, 444 [1978]; Matter of Josato, Inc. v Wright, 35 AD3d 470, 471 [2006]).
Before deference is accorded to the determination of a zoning board in a matter such as the onebefore us, it must appear that the zoning board engaged in a balancing test "weighing the petitioner'sinterest against the interest of the neighborhood" based on consideration of the factors delineated inVillage Law § 7-712-b (3) (Matter of Ifrah v Utschig, 98 NY2d at 304; see Matter of Gallo v Rosell, 52 AD3d514, 516 [2008]). Those factors are: "(1) whether an undesirable change will be produced in thecharacter of the neighborhood or a detriment to nearby properties will be created by the granting of thearea variance; (2) whether the benefits sought by the applicant can be achieved by some other method,feasible for the applicant to pursue, other than an area variance; (3) whether the requested areavariance is substantial; (4) whether the proposed variance will have an adverse effect or impact on thephysical or environmental conditions in the neighborhood or district; and (5) whether the allegeddifficulty was self-created" (Matter of Sasso v Osgood, 86 NY2d at 382 [internal quotationmarks omitted]; see Matter of Picarelli vKarl, 51 AD3d 1028, 1029 [2008]; Matter of Efraim v Trotta, 17 AD3d 463 [2005]). "The need to alleviatetraffic congestion by requiring adequate parking facilities" is a legitimate consideration for a zoningboard of appeals (Matter of Il Classico Rest. v Colin, 254 AD2d 418, 420 [1998]; see Matter of Rivero v Voelker, 38 AD3d784, 785 [2007]).
Here, the Board weighed the relevant statutory factors and its determination was rational, and notarbitrary or capricious. The Board's conclusion that the petitioner's proposal would exacerbate alreadyexisting traffic and parking problems on Jericho Turnpike and surrounding streets resulted from alegitimate consideration and had a rational basis (see Matter of Rivero v Voelker, 38 AD3d at785; Matter of Il Classico Rest. v Colin, 254 AD2d at 420; Matter of Moundroukas vNadel, 223 AD2d 645 [1996]). The fact that the proposal offered no on-site or other parkingrequired a substantial variance from the zoning regulations. Furthermore, the petitioner is presumed tohave had knowledge of applicable zoning restrictions in effect when it purchased the property, and, assuch, any hardship was self-created (see Matter of Gallo v Rosell, 52 AD3d at 516;Matter of Strohli v Zoning Bd. of Appeals of Vil. of Montebello, 271 AD2d 612 [2000];Matter of Levine v Korman, 185 AD2d 323 [1992]). Accordingly, the petition should bedenied and the proceeding dismissed. Skelos, J.P., Lifson, Santucci and Balkin, JJ., concur.