| Matter of Monroe Beach, Inc. v Zoning Bd. of Appeals of City of LongBeach, N.Y. |
| 2010 NY Slip Op 02797 [71 AD3d 1150] |
| March 30, 2010 |
| Appellate Division, Second Department |
| In the Matter of Monroe Beach, Inc., Appellant, v ZoningBoard of Appeals of City of Long Beach, New York, Respondent. |
—[*1] Corey E. Klein, Corporation Counsel, Long Beach, N.Y., for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Boardof Appeals of the City of Long Beach, New York, dated October 24, 2008, which, after ahearing, denied the petitioner's application for area variances, the petitioner appeals from ajudgment of the Supreme Court, Nassau County (Murphy, J.), entered April 23, 2009, whichdenied the 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 (see Matter of Ifrah v Utschig, 98 NY2d 304, 308[2002]; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 771 [2005]). Thus,the determination of a 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, 86NY2d 374, 384 [1995]; Matter of Gallo v Rosell, 52 AD3d 514, 515 [2008]). "Whenreviewing the determinations of a Zoning Board, courts consider 'substantial evidence' only todetermine whether the record contains sufficient evidence to support the rationality of theBoard's determination" (Matter of Sasso v Osgood, 86 NY2d at 385 n 2).
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 General City Law § 81-b [4] [b]; Matter of Halperin v City of NewRochelle, 24 AD3d at 773). In making that determination, the zoning board must alsoconsider whether: (1) 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) the benefit sought by the applicant can be achieved by some method feasible for theapplicant to pursue, other than an area variance; (3) the requested area variance is substantial; (4)the proposed variance will have an adverse effect or impact on the physical or environmentalconditions in the [*2]neighborhood or district; and (5) the allegeddifficulty was self-created (see General City Law § 81-b [4] [b]).
Here, the Zoning Board of Appeals of the City of Long Beach, New York (hereinafter theZBA), engaged in the required balancing test, and its denial of the petitioner's application forarea variances had a rational basis, and was not illegal or arbitrary and capricious. The ZBA'sfindings that the requested variances were substantial, would result in a detriment to nearbyproperties, and would have an adverse effect on the physical and environmental conditions in thesurrounding neighborhood were supported by hearing testimony and documentary evidence(see Matter of DiPaolo v Zoning Bd. of Appeals of Town/Vil. of Harrison, 62 AD3d792, 793 [2009]). Moreover, its finding that the alleged difficulty was self-created had a rationalbasis, as the applicable zoning regulations were in effect when the petitioner purchased theproperty (see Matter of Rivero v Voelker, 38 AD3d 784, 786 [2007]; Matter ofStrohli v Zoning Bd. of Appeals of Vil. of Montebello, 271 AD2d 612, 613 [2000]).
"[T]he fact that one property owner is denied a variance while others similarly situated aregranted such variances, does not, in and of itself, indicate that the difference in result is due toimpermissible discrimination or to arbitrariness" (Matter of Spandorf v Board of Appeals ofVil. of E. Hills, 167 AD2d 546, 547 [1990]; see Matter of Arata v Morelli, 40 AD3d991, 993 [2007]). Here, the petitioner's contention that the ZBA granted another area varianceapplication for the construction of a nearby multistory residential building is insufficient toestablish that the ZBA's conduct in denying its application was arbitrary and capricious, since thepetitioner failed to demonstrate that the ZBA "reach[ed] a different result on essentially the samefacts" (Matter of Arata v Morelli, 40 AD3d at 993 [citation and internal quotation marksomitted]; see Matter of Gallo v Rosell, 52 AD3d at 516).
The petitioner's contention that the ZBA's determination was arbitrary and capriciousbecause the ZBA failed to issue specific findings of fact until after the instant proceeding wascommenced is without merit (see Matter of Thirty W. Park Corp. v Zoning Bd. of Appeals ofCity of Long Beach, 43 AD3d 1068, 1069 [2007]; Matter of Efraim v Trotta, 17AD3d 463, 464 [2005]).
In view of the foregoing, the Supreme Court properly denied the petition and dismissed theproceeding. Dillon, J.P., Balkin, Dickerson and Lott, JJ., concur.