| Matter of Crilly v Karl |
| 2009 NY Slip Op 08225 [67 AD3d 793] |
| November 10, 2009 |
| Appellate Division, Second Department |
| In the Matter of Raymond Crilly, Respondent, v Terry J.Karl et al., Appellants. |
—[*1] Scheyer & Jellenik, Nesconset, N.Y. (Richard I. Scheyer of counsel), forrespondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Boardof Appeals of the Town of Brookhaven dated June 26, 2007, which, after a hearing, denied thepetitioner's application for area variances, Terry J. Karl, Marvin L. Colson, Paul M. DeChance,Keri Peragine, Edward P. Morris, Jr., James Wisdom, Michael Schaefer, the Zoning Board ofAppeals of the Town of Brookhaven, the Department of Planning, Environment andDevelopment of the Town of Brookhaven, and the Town of Brookhaven appeal from (1) ajudgment of the Supreme Court, Suffolk County (Pitts, J.), entered March 19, 2008, which, upona decision of the same court dated January 10, 2008, granted the petition, annulled thedetermination, and remitted the matter to the Zoning Board of Appeals of the Town ofBrookhaven to grant the variances, and (2) from so much of an order of the same court datedAugust 7, 2008, as denied that branch of their motion which was for leave to renew theiropposition to the petition.
Ordered that the judgment is reversed, on the law, the petition is denied, the determination isconfirmed, and the proceeding is dismissed on the merits; and it is further,
Ordered that the appeal from the order is dismissed as academic in light of our determinationof the appeal from the judgment; and it is further,
Ordered that one bill of costs is awarded to the appellants.[*2]
In determining whether to grant an area variance, azoning board must engage in a balancing test, weighing the benefit to the applicant against thedetriment to the health, safety, and welfare of the neighborhood or community if the areavariance is granted (see Town Law § 267-b [3] [b]; Matter of Sasso vOsgood, 86 NY2d 374, 384 [1995]). The zoning board must also consider whether (1) anundesirable 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 if itis granted, and (5) the alleged difficulty was self-created (see Town Law § 267-b[3] [b]; Matter of Sasso v Osgood, 86 NY2d at 384).
"The judicial responsibility is to review zoning decisions but not, absent proof of arbitraryand unreasonable action, to make them" (Matter of Cowan v Kern, 41 NY2d 591, 599[1977]). Upon judicial review, the general rule is that, absent evidence of illegality, a court mustsustain the determination if it has a rational basis in the record before the zoning board (see Matter of Pecoraro v Board of Appealsof Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Ifrah v Utschig, 98NY2d 304, 308 [2002]; Matter of Sasso v Osgood, 86 NY2d at 384).
Here, the Zoning Board of Appeals of the Town of Brookhaven (hereinafter the ZBA)engaged in the required balancing test and considered the relevant statutory factors. Contrary tothe petitioner's contentions, the denial of the application for the area variances had a rationalbasis and was not arbitrary or capricious. First, the requested variances were substantial (seeMatter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 614; Matterof Ifrah v Utschig, 98 NY2d at 309). In addition, the petitioner's hardship was self-created,as he was the contract vendee when he applied for the area variances (see Matter of Ifrah vUtschig, 98 NY2d at 309; Matter ofGallo v Rosell, 52 AD3d 514, 516 [2008]). There were also feasible alternatives to thearea variances. Finally, there was a rational basis in the record for the ZBA's determination thatthe proposed development would have an adverse impact on the physical or environmentalconditions in the neighborhood, particularly as to surface water and groundwater quality (seeMatter of Ifrah v Utschig, 98 NY2d at 309).
Although the petitioner asserts that the ZBA has approved other similar variances in the500-foot radius of the subject property, "the mere fact that one property owner is denied avariance while others similarly situated are granted variances does not, in itself, suffice toestablish that the difference in result is due either to impermissible discrimination or to arbitraryaction" (Matter of Cowan v Kern, 41 NY2d at 595; see Matter of Berk v McMahon, 29 AD3d 902, 903 [2006]). Thepetitioner failed to establish that the ZBA reached a different result on essentially the same facts(see Matter of Gallo v Rosell, 52 AD3d at 516; Matter of D'Alessandro v Board ofZoning & Appeals for Vil. of Westbury, 177 AD2d 694, 695 [1991]; Matter of Pesek vHitchcock, 156 AD2d 690, 691 [1989]).
Accordingly, the Supreme Court should have denied the petition, confirmed thedetermination, and dismissed the proceeding on the merits.
The appellants' remaining contention has been rendered academic in light of ourdetermination. Skelos, J.P., Covello, Santucci and Balkin, JJ., concur.