| Matter of Frank v Zoning Bd. of Town of Yorktown |
| 2011 NY Slip Op 01657 [82 AD3d 764] |
| March 1, 2011 |
| Appellate Division, Second Department |
| In the Matter of Howard Frank et al., Appellants, v ZoningBoard of Town of Yorktown et al., Respondents. |
—[*1] Milber Makris Plousadis & Seiden, LLP, White Plains, N.Y. (Thomas H. Kukowski ofcounsel), for respondent Zoning Board of Town of Yorktown.
In a proceeding pursuant to CPLR article 78 to review a determination of the respondentZoning Board of Town of Yorktown, dated May 28, 2009, which, after a hearing, granted anapplication for area variances, the petitioners appeal from a judgment of the Supreme Court,Westchester County (Holdman, J.), entered April 13, 2010, which denied the petition anddismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
Homeowners Tom Knoesel and Joan Knoesel (hereinafter together the Knoesels) applied tothe Zoning Board of Town of Yorktown (hereinafter the Board) for an area variance to legalizean existing fence which was taller than permitted by the Town Code. The Knoesels subsequentlyrequested variances for two small sheds on their property which did not meet setbackrequirements, and the Board amended their application to include this relief. The Board grantedthe application, concluding, inter alia, that legalizing the fence would not have an adverse impacton the neighborhood. The petitioners, who are neighbors of the Knoesels, thereafter commencedthis proceeding pursuant to CPLR article 78 to review the Board's determination. The SupremeCourt denied the petition and dismissed the proceeding, concluding that the Board'sdetermination was rational and not arbitrary and capricious. We affirm.
Contrary to the petitioners' contention, the Board's failure to file its written decision in theoffice of the town clerk within five business days after it was rendered does not mandateannulment of its determination (see Town Law § 267-a [9]). Town Law §267-a (9) does not specify a sanction for failure to comply with the five-day filing requirement(see generally Nyack Hosp. v Village of Nyack Planning Bd., 231 AD2d 617, 618[1996]). In any event, the Board offered a reasonable explanation for its delay in filing its writtendecision, and the delay was not extensive (see Matter of Platzman v Munno, 184 Misc 2d201, 203 [2000], affd 282 AD2d 539 [2001]; cf. Matter of Barsic v Young, 22 AD3d 488, 489 [2005]).
We also reject the petitioners' contention that the determination must be annulled because theBoard failed to make specific factual findings as to each of the relevant statutory factors set forthin [*2]Town Law § 267-b (3) (b). The Board's decisionspecified the evidentiary basis upon which its determination relied, and is sufficient to permit aninformed judicial review (see Matter ofOhrenstein v Zoning Bd. of Appeals of Town of Canaan, 39 AD3d 1041, 1043 [2007];Matter of Levada v Board of Zoning Appeals of Inc. Vil. of Freeport, 199 AD2d 504, 505[1993]; Matter of Fischer v Markowitz, 166 AD2d 444, 445 [1990]; Matter ofBuitenkant v Robohm, 122 AD2d 791 [1986]; cf. Matter of Serota v Town Bd. of Townof Oyster Bay, 191 AD2d 700 [1993]).
Furthermore, the Supreme Court properly denied the petition and dismissed the proceeding."Local zoning boards have broad discretion in considering applications for area variances" (Matter of Caspian Realty, Inc. v Zoning Bd.of Appeals of Town of Greenburgh, 68 AD3d 62, 67 [2009]; see Matter of Inlet Homes Corp. v ZoningBd. of Appeals of Town of Hempstead, 2 NY3d 769 [2004]; Matter of Korzenko v Scheyer, 78AD3d 701 [2010], lv denied 16 NY3d 705 [2011]) and a zoning board'sdetermination will be upheld if it is rational and not arbitrary and capricious (see Matter ofSasso v Osgood, 86 NY2d 374, 384-385 [1995]; Matter of Korzenko v Scheyer, 78 AD3d 701 [2010]). Here, theBoard's determination, which was based in part upon a site inspection of the property and a reportof the Town Building Department, had a rational basis and was not arbitrary and capricious(see Town Law § 267-b [3] [b]; Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d608, 614 [2004]; Matter ofGoldberg v Zoning Bd. of Appeals of City of Long Beach, 79 AD3d 874 [2010]; Matter of Celentano v Board of ZoningAppeals of Town of Brookhaven, 63 AD3d 1156 [2009]).
The petitioners' remaining contentions are without merit. Prudenti, P.J., Eng, Belen andSgroi, JJ., concur.