| Matter of Rossney v Zoning Bd. of Appeals of the Inc. Vil. ofOssining |
| 2010 NY Slip Op 09278 [79 AD3d 894] |
| December 14, 2010 |
| Appellate Division, Second Department |
| In the Matter of Paul A. Rossney, Appellant, v Zoning Board ofAppeals of the Incorporated Village of Ossining, Respondent. |
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In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board ofAppeals of the Incorporated Village of Ossining dated September 15, 2008, which, after a hearing,denied the petitioner's application for area variances, the petitioner appeals from a judgment of theSupreme Court, Westchester County (Cacace, J.), entered April 30, 2009, which denied the petitionand, in effect, dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
The petitioner's contentions that the determination of the respondent, Zoning Board of Appeals ofthe Incorporated Village of Ossining (hereinafter the ZBA), was arbitrary and capricious, and that theZBA failed to apply the statutory analysis required by Village Law § 7-712-b (3), are withoutmerit. Judicial review of a determination of a zoning board of appeals is limited to ascertaining whetherthe action was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Hoag v Zoning Bd. of Appeals ofTown of Clinton, 27 AD3d 742 [2006]; Matter of Ferraris v Zoning Bd. of Appeals of Vil. of Southampton, 7 AD3d710 [2004]; Matter of Mejias v Town of Shelter Is. Zoning Bd. of Appeals, 298 AD2d458 [2002]). Where the determination of a zoning board of appeals is rational and supported bysubstantial evidence, a reviewing court may not substitute its own judgment for that of the board, even ifsuch a contrary determination is itself supported by the record (see Matter of Metro Enviro Transfer, LLC v Village of Croton-on-Hudson, 5NY3d 236 [2005]; Matter of Retail Prop. Trust v Board of Zoning Appeals of Town ofHempstead, 98 NY2d 190, 196 [2002]; Matter of Toys "R" Us v Silva, 89 NY2d 411,423 [1996]; Matter of Roberts v Wright,70 AD3d 1041 [2010]; Matter ofMueller v Zoning Bd. of Appeals of Town of Southold, 10 AD3d 687 [2004]; Matter ofSadler v Zoning Bd. of Appeals of Town of Union Vale, 240 AD2d 505 [1997]).
Pursuant to Village Law § 7-712-b (3) (b), in making a determination on an application foran area variance, a zoning board must engage in a balancing test, weighing the benefit to the applicantagainst the detriment to the health, safety, and welfare of the community, and considering the statutoryfactors. The five statutory factors are: (1) whether an undesirable change will be produced in thecharacter of the neighborhood or a detriment to nearby properties will be created by the granting of thearea variance, (2) whether the benefit sought by the applicant can be achieved by some method,feasible for the applicant to pursue, other than an area variance, (3) whether the requested area [*2]variance is substantial, (4) whether the proposed variance will have anadverse impact on the physical or environmental conditions in the neighborhood, and (5) whether thealleged difficulty was self-created.
Here, the ZBA considered all of the statutory factors and weighed the benefit to the petitioneragainst the possible detrimental effects to the health, safety, and welfare of the neighborhood andcommunity, as required by the Village Law. The ZBA found that the petitioner's proposal would resultin the creation of two substandard lots requiring a substantial variance from the required minimum lotarea, that the petitioner's difficulty was self-created, and that the proposed subdivision would producean undesirable change in the character of the neighborhood (see Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals, 43AD3d 926 [2007]; Matter of Mattiacciov Zoning Bd. of Appeals of Vil. of Pleasantville, 22 AD3d 758 [2005]; Matter of Ram v Town of Islip, 21 AD3d493 [2005]; Matter of Cortland LLC vZoning Bd. of Appeals of Vil. of Roslyn Estates, 21 AD3d 371 [2005]; Matter of Milburn Homes v Trotta, 7 AD3d531 [2004]; Matter of DiPaci v ZoningBd. of Appeals Vil. of Upper Nyack, 4 AD3d 354 [2004]; Matter of Ceballos v ZoningBd. of Appeals of Town of Mount Pleasant, 304 AD2d 575 [2003]). The ZBA also found that thebenefit sought by the petitioner could be achieved by another feasible method besides an area variance,and that the petitioner's proposal would have adverse effects on physical and environmental conditionsin the neighborhood. The ZBA's determination had a rational basis and was not illegal, arbitrary andcapricious, or an abuse of discretion. Accordingly, the Supreme Court properly denied the petition.Mastro, J.P., Fisher, Roman and Sgroi, JJ., concur.