| Matter of Matejko v Board of Zoning Appeals of Town ofBrookhaven |
| 2010 NY Slip Op 07764 [77 AD3d 949] |
| October 26, 2010 |
| Appellate Division, Second Department |
| In the Matter of George Matejko, Appellant, v Board ofZoning Appeals of Town of Brookhaven et al., Respondents. |
—[*1] Robert F. Quinlan, Town Attorney, Farmingville, N.Y. (Julie L. Yodice of counsel), forrespondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Board ofZoning Appeals of the Town of Brookhaven dated July 16, 2008, which, after a hearing, deniedthe petitioner's application for area variances, the petitioner appeals from a judgment of theSupreme Court, Suffolk County (Farneti, J.), dated December 30, 2009, which denied thepetition 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 ofNew Rochelle, 24 AD3d 768, 771 [2005]). Thus, the determination of a zoning boardshould be sustained upon judicial review if it is not illegal, has a rational basis, and is notarbitrary and capricious (see Matter of Sasso v Osgood, 86 NY2d 374, 384 [1995]; Matter of Monroe Beach, Inc. v Zoning Bd.of Appeals of City of Long Beach, N.Y., 71 AD3d 1150 [2010]). Contrary to thecontention of the Board of Zoning Appeals of the Town of Brookhaven (hereinafter the BZA),the "substantial evidence" standard of review is inapplicable to a zoning board's determination ofan application for an area variance, since such a determination is not made after a hearing atwhich evidence is taken pursuant to direction of law (see CPLR 7803 [4]). Rather,"[w]hen reviewing the determinations of a Zoning Board, courts consider 'substantial evidence'only to determine whether the record contains sufficient evidence to support the rationality of theBoard's determination" (Matter of Sasso v Osgood, 86 NY2d at 384 n 2; see Matter ofHalperin v City of New Rochelle, 24 AD3d at 769-770).
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 Town Law § 267-b [3] [b]; Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d608, 612 [2004]). In [*2]making that determination, thezoning board must consider whether: (1) an undesirable change will be produced in the characterof the neighborhood 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 neighborhood or district; and (5) the alleged difficulty was self-created(see Town Law § 267-b [3] [b]).
Here, the BZA engaged in the required balancing test and considered the relevant statutoryfactors, and its denial of the petitioner's application for area variances had a rational basis, andwas not illegal or arbitrary and capricious. The BZA's findings that the requested variances weresubstantial, would result in a detriment to nearby properties, would have an adverse effect on thephysical and environmental conditions in the surrounding neighborhood, and that the benefitsought by the petitioner could be achieved by an alternative feasible method other than therequested variances, were supported by hearing testimony and documentary evidence (seeMatter of Monroe Beach, Inc. v Zoning Bd. of Appeals of City of Long Beach, N.Y., 71AD3d at 1151; Matter of DiPaolo vZoning Bd. of Appeals of Town/Vil. of Harrison, 62 AD3d 792, 793 [2009]). Moreover,the BZA's finding that the alleged difficulty was self-created had a rational basis, as theapplicable zoning regulations were in effect when the petitioner purchased the property (see Matter of Rivero v Voelker, 38AD3d 784, 786 [2007]; Matter of Strohli v Zoning Bd. of Appeals of Vil. ofMontebello, 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 AD3d 991, 993 [2007]). Here, thepetitioner's contention that the BZA granted an application for the subdivision of nearby propertyinto "flag lots" in 1999 was insufficient to establish that the BZA's denial of his application wasarbitrary and capricious, since the petitioner failed to demonstrate that the BZA "reach[ed] adifferent result on essentially the same facts" (Matter of Arata v Morelli, 40 AD3d at 993[internal quotation marks omitted]; seeMatter of Gallo v Rosell, 52 AD3d 514, 516 [2008]).
Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.Covello, J.P., Santucci, Balkin and Austin, JJ., concur.