| Matter of Hurley v Zoning Bd. of Appeals of Vil. ofAmityville |
| 2010 NY Slip Op 00683 [69 AD3d 940] |
| January 26, 2010 |
| Appellate Division, Second Department |
| In the Matter of Brian Hurley, Appellant, v Zoning Boardof Appeals of Village of Amityville, Respondent. |
—[*1] Bruce Kennedy, P.C., Amityville, N.Y., for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Boardof Appeals of the Village of Amityville dated October 24, 2007, which, after a hearing, deniedthe petitioner's application for area variances, the petitioner appeals from an order and judgment(one paper) of the Supreme Court, Suffolk County (Weber, J.), dated June 10, 2008, whichdenied the petition and, in effect, dismissed the proceeding.
Ordered that the order and judgment is affirmed, with costs.
There is no merit to the contention of the Zoning Board of Appeals of the Village ofAmityville (hereinafter ZBA) that this proceeding is barred by collateral estoppel or res judicatabased on its prior unchallenged denial of an application by the petitioner for area variances. Azoning board can entertain a new application when revised plans materially change the aspects ofa case (see Matter of Pettit v Board of Appeals of Town of Islip, 160 AD2d 1006, 1007[1990]; Matter of Freeman v Town of Ithaca Zoning Bd. of Appeals, 61 AD2d 1070[1978]). Here, the ZBA determined, as supported by the record, that there were significantchanges in the petitioner's new application. Under the circumstances, the proceeding is notbarred by collateral estoppel or res judicata.
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 (see Matter of Ifrah v Utschig, 98 NY2d 304, 308[2002]; Matter of Gallo v Rosell, 52 AD3d 514, 515 [2008]). Thus, the determination ofa zoning board should be sustained upon judicial review if it is not illegal, has a rational basis,and is not arbitrary and capricious (see Matter of Sasso v Osgood, 86 NY2d 374, 384[1995]; Matter of Gallo v Rosell, 52 AD3d at 515).
In determining whether to grant an application for an area variance, a zoning board isrequired to engage in a balancing test weighing the benefit to the applicant against the detrimentto the health, safety, and welfare of the neighborhood or community if the variance is granted(see Village Law § 7-712-b [3] [b]; see also Matter of Tsunis v Zoning Bd. ofAppeals of Inc. Vil. of Poquott, 59 AD3d 726, 727 [2009]; Matter of Gallo v Rosell,52 AD3d at 515). The zoning board must also consider whether: (1) an undesirable change willbe produced in the character of the neighborhood, or a detriment to nearby [*2]properties will be created by the granting of the area variance, (2)the benefit sought by the applicant can be achieved by some other method, other than an areavariance, feasible for the applicant to pursue, (3) the required area variance is substantial, (4) theproposed variance will have an adverse effect or impact on the physical or environmentalconditions in the neighborhood or district, and (5) the alleged difficulty was self-created (seeVillage Law § 7-712-b [3] [b]; see also Matter of Gallo v Rosell, 52 AD3d at515).
Here, the record reveals that the ZBA weighed the relevant statutory factors, and that itsdetermination was rational, and was not arbitrary or capricious or an abuse of discretion. TheZBA's determination was not arbitrary or capricious despite its adoption of a negativedeclaration pursuant to the State Environmental Quality Review Act. An application may bedenied even in the absence of physical or environmental harm to the neighborhood (seeMatter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 615 [2004]).
The fact that the ZBA previously had approved a similar application for a nearby propertydoes not, in itself, establish that the ZBA's determination was arbitrary or capricious. Where, ashere, the ZBA "provides a rational explanation for reaching a different result on similar facts, thedetermination will not be viewed as either arbitrary or capricious" (Matter of Berk vMcMahon, 29 AD3d 902, 903 [2006]; see Matter of Waidler v Young, 63 AD3d 953[2009]; Knight v Amelkin, 150 AD2d 528, 529 [1989]). Accordingly, the Supreme Courtproperly denied the petition and, in effect, dismissed the proceeding. Santucci, J.P., Balkin, Engand Chambers, JJ., concur.