| Matter of Roberts v Wright |
| 2010 NY Slip Op 01656 [70 AD3d 1041] |
| February 23, 2010 |
| Appellate Division, Second Department |
| In the Matter of Steven Roberts, Jr., et al.,Appellants, v Gerald G. Wright et al., Respondents. |
—[*1]
In a proceeding pursuant to CPLR article 78 to review two determinations of the Town ofHempstead Board of Zoning Appeals, both dated January 28, 2008, which, after a hearing,denied their applications for certain area variances, the petitioners appeal from a judgment of theSupreme Court, Nassau County (Diamond, J.), entered September 30, 2008, which denied thepetition and dismissed the proceeding.
Ordered that the judgment is affirmed, without costs or disbursements.
The petitioners own residential property in the Town of Hempstead, improved with asingle-family dwelling. The premises are located within a residential "B" district, which requiresa minimum lot size of 6,000 square feet. The petitioners sought area variances from the Town ofHempstead Board of Zoning Appeals (hereinafter the BZA), which would enable them tosubdivide the premises into two building plots, demolish the existing residence, and constructtwo new single-family dwellings. The revised plans provided for equal lots of approximately5,795 square feet each. After a hearing, the BZA found that, although the variances sought werenot substantial, the proposed substandard lots would have an adverse effect on the character andphysical or environmental conditions of the neighborhood, which was characterized by lotsmuch larger than required by the ordinance. The BZA denied the variances, and the petitionerscommenced this proceeding pursuant to CPLR article 78. The Supreme Court denied the petitionand dismissed the proceeding. We affirm.
Local zoning boards are vested with broad discretion in considering applications for areavariances, and "[c]ourts may set aside a zoning board determination only where the recordreveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merelysuccumbed to generalized community pressure" (Matter of Pecoraro v Board of Appeals ofTown of Hempstead, 2 NY3d 608, 613 [2004]; see Matter of Ifrah v Utschig, 98NY2d 304, 308 [2002]). A determination of a zoning board should be sustained on judicialreview if it has a rational basis and is not arbitrary and capricious (see Matter of Pecoraro vBoard of Appeals of Town of Hempstead, 2 NY3d at 613; Matter of Ifrah v Utschig,98 NY2d at 308; Matter of Alcantara v Zoning Bd. of Appeals, Vil. of Ossining, State ofN.Y., 64 AD3d 774 [2009]). Where a rational basis for the determination exists, "a courtmay not substitute its own judgment for that of the board, even if such a contrary determinationis itself supported by the record" (Matter of Retail Prop. Trust v Board of Zoning Appeals ofTown of [*2]Hempstead, 98 NY2d 190, 196 [2002]; seeMatter of Gebbie v Mammina, 13 NY3d 728 [2009]).
"Pursuant to Town Law § 267-b (3), when determining whether to grant an areavariance, a zoning board of appeals must weigh the benefit of the grant to the applicant againstthe detriment to the health, safety and welfare of the neighborhood or community if the varianceis granted" (Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at612). A zoning board must consider (1) whether the granting of the variance would result in anundesirable change in the character of the neighborhood, or a detriment to neighboringproperties, (2) whether the benefit sought can be achieved by some method other than an areavariance, (3) whether the requested variance is substantial, (4) whether the grant of the variancewill have an adverse impact upon the physical or environmental conditions in the neighborhood,and (5) whether the alleged difficulty is self-created (see Town Law § 267-b [3][b]).
Here, the record demonstrates that the BZA engaged in the required balancing test andconsidered the relevant statutory factors (see Matter of Pecoraro v Board of Appeals of Townof Hempstead, 2 NY3d at 614; Matter of Gebbie v Mammina, 13 NY3d 728 [2009]).Its determination had a rational basis, was not arbitrary and capricious, and did not apply adifferent standard to the petitioners' property (see Town Law § 262). Accordingly,the Supreme Court properly denied the petition and dismissed this proceeding. Santucci, J.P.,Miller, Eng and Lott, JJ., concur.