| Matter of DiPaolo v Zoning Bd. of Appeals of Town/Vil. ofHarrison |
| 2009 NY Slip Op 03901 [62 AD3d 792] |
| May 12, 2009 |
| Appellate Division, Second Department |
| In the Matter of Anthony DiPaolo, Appellant, v ZoningBoard of Appeals of the Town/Village of Harrison, Respondent. Christopher Reich et al.,Intervenors-Respondents. |
—[*1] Wolff & Latwin, LLP, Purchse, N.Y. (Joseph L. Latwin of counsel), forrespondent-respondent. Keane & Beane, P.C., White Plains, N.Y. (Eric L. Gordon of counsel), forintervenors-respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Boardof Appeals of the Town of Harrison dated January 4, 2007, which, after a hearing, denied thepetitioner's application for a rear-yard setback variance, the petitioner appeals from a judgmentof the Supreme Court, Westchester County (Adler, J.), entered December 4, 2007, which deniedthe petition and dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
"Local zoning boards have broad discretion in considering applications for variances, andjudicial review is limited to determining whether the action taken by the board was illegal,arbitrary, or an abuse of discretion" (Matter of Gallo v Rosell, 52 AD3d 514, 515 [2008]; see Matterof Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Halperin v City of New Rochelle, 24 AD3d 768 [2005])."Thus, the determination of a zoning board should be sustained upon judicial review if it was notillegal, has a rational basis, and is not arbitrary and capricious" (Matter of Gallo v Rosell,52 AD3d at 515; see Matter of Sasso v Osgood, 86 NY2d 374, 384 [1995]; Matter of Rivero v Voelker, 38 AD3d784, 785 [2007]; Matter of Halperin v City of New Rochelle, 24 AD3d at 772). "'When reviewing the determinations [*2]of a Zoning Board,courts consider substantial evidence only to determine whether the record contains sufficientevidence to support the rationality of the Board's determination' " (Matter of Gallo v Rosell,52 AD3d at 515, quoting Matter of Sasso v Osgood, 86 NY2d at 385).
In determining whether to grant an area variance, a zoning board of appeals is required toweigh the benefit to the applicant against the detriment to the health, safety, and welfare of theneighborhood or community if the variance is granted (see Town Law § 267-b [3][b]; Matter of Pecoraro v Board ofAppeals of Town of Hempstead, 2 NY3d 608, 612 [2004]; Matter of Ifrah vUtschig, 98 NY2d at 307). In making that determination, the zoning board of appeals mustalso consider (1) whether an undesirable change will be produced in the character of theneighborhood or a detriment to nearby properties will be created by the granting of the areavariance, (2) whether the benefit sought by the applicant can be achieved by some 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 impacton the physical or environmental conditions in the neighborhood or district, and (5) whether thealleged difficulty was self-created (see Town Law § 267-b [3] [b]; Matter ofPecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 612-613; Matter ofIfrah v Utschig, 98 NY2d at 307-308).
Here, the Zoning Board of Appeals of the Town of Harrison (hereinafter the Board) engagedin the required balancing test and considered the relevant statutory factors. The Board's findingsthat the requested variance was substantial and would produce an undesirable change in thecharacter of the neighborhood, and that the hardship to the petitioner was self-created, weresupported by testimony of several local residents and objective and factual documentaryevidence. Moreover, evidence was adduced that construction on the subject property mightadversely affect protected wetlands and cause drainage problems. Contrary to the petitioner'scontentions, the Board's determination was not illegal, had a rational basis, and was not arbitraryor capricious (see Matter of Kraut vBoard of Appeals of Vil. of Scarsdale, 43 AD3d 923 [2007]; Matter of Harmon vKern, 159 AD2d 502 [1990]). Accordingly, the Supreme Court properly denied the petitionand dismissed the proceeding.
The petitioner's remaining contentions have been rendered academic in light of ourdetermination. Rivera, J.P., Covello, Dickerson and Chambers, JJ., concur.