| Matter of Celentano v Board of Zoning Appeals of Town ofBrookhaven |
| 2009 NY Slip Op 05547 [63 AD3d 1156] |
| June 30, 2009 |
| Appellate Division, Second Department |
| In the Matter of John Celentano et al., Appellants, v Boardof Zoning Appeals of Town of Brookhaven et al., Respondents. |
—[*1] Karen M. Wilutis, Town Attorney, Farmingville, N.Y. (David J. Moran of counsel), forrespondent Board of Zoning Appeals of Town of Brookhaven. Richard I. Scheyer, Nesconset, N.Y., for respondents Joan C. Dochtermann andDochtermann Family Trust.
In a proceeding pursuant to CPLR article 78 to review a determination of the Board ofZoning Appeals of Town of Brookhaven dated June 29, 2007, which, after a hearing, granted theapplication of Joan C. Dochtermann for area variances, the petitioners appeal from a judgment ofthe Supreme Court, Suffolk County (Rebolini, J.), dated December 7, 2007, which denied thepetition and dismissed the proceeding.
Ordered that the judgment is affirmed, with one bill of costs payable to the respondentsappearing separately and filing separate briefs.
Local zoning boards are vested with broad discretion in considering applications for areavariances, and judicial review is limited to determining whether the action taken by the boardwas illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Pecoraro vBoard of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Ifrah vUtschig, 98 NY2d 304, 308 [2002]). Thus, a determination of a zoning board should besustained if it has a rational basis and is not arbitrary and capricious (see Matter of Sasso vOsgood, 86 NY2d 374, 384 [1995]; Matter of Halperin v City of New Rochelle, 24AD3d 768, 770-771 [2005]).
In determining whether to grant an application for an area variance, a zoning board mustconsider whether (1) an undesirable change will be produced in the character of theneighborhood or a detriment to nearby properties if the area variance is granted, (2) the benefitsought by the applicant can be achieved by some method, feasible to the applicant, other than anarea variance, (3) the required area variance is substantial, (4) the proposed variance will have anadverse effect or impact on physical or environmental conditions in the neighborhood or districtif 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 at 382).[*2]
Here, the Board of Zoning Appeals of the Town ofBrookhaven engaged in the required balancing test, and its determination to grant the areavariances had a rational basis and was not arbitrary and capricious (see Matter of Filangeri vFoster, 257 AD2d 895, 897 [1999]; Matter of Riklis v Board of Zoning Appeals of Townof Hempstead, 243 AD2d 482 [1997]). Accordingly, the Supreme Court properly denied thepetition and dismissed the proceeding. Fisher, J.P., Florio, Covello and Dickerson, JJ., concur.