| Matter of Luburic v Zoning Bd. of Appeals of Vil. ofIrvington |
| 2013 NY Slip Op 03333 [106 AD3d 824] |
| May 8, 2013 |
| Appellate Division, Second Department |
| In the Matter of Vesna Luburic,Respondent, v Zoning Board of Appeals of Village of Irvington,Appellant. |
—[*1] Richard T. Blancato, Tarrytown, N.Y., for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the ZoningBoard of Appeals of the Village of Irvington dated February 4, 2011, which denied thepetitioner's application for a site capacity variance to permit her to build a single-familyresidential dwelling on certain real property, the Zoning Board of Appeals of the Villageof Irvington appeals from a judgment of the Supreme Court, Westchester County(Warhit, J.), entered November 22, 2011, which granted the petition, annulled thedetermination, and remitted the matter to the Zoning Board of Appeals of the Village ofIrvington to grant the requested variance.
Ordered that the judgment is affirmed, with costs.
Generally, local zoning boards have broad discretion in deciding applications (see Matter of Pecoraro v Board ofAppeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Goldberg v Zoning Bd.of Appeals of City of Long Beach, 79 AD3d 874, 876 [2010]). "Courts may setaside a zoning board determination only where the record reveals that the board actedillegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalizedcommunity pressure" (Matter of Pecoraro v Board of Appeals of Town ofHempstead, 2 NY3d at 613). "[A] determination will not be deemed rational if itrests entirely on subjective considerations, such as general community opposition, andlacks an objective factual basis" (Matter of Cacsire v City of White Plains Zoning Bd. ofAppeals, 87 AD3d 1135, 1137 [2011]). "Conclusory findings of fact areinsufficient to support a determination by a zoning board of appeals, which is required toclearly set forth how and in what manner the granting of a variance would be improper"(Matter of Gabrielle RealtyCorp. v Board of Zoning Appeals of Vil. of Freeport, 24 AD3d 550, 550 [2005][internal quotation marks omitted]).
Here, the Supreme Court properly annulled the determination of the Zoning Board ofAppeals of the Village of Irvington (hereinafter the ZBA), which denied the petitioner'ssecond application for a site capacity variance needed to construct a single-familyresidence on the vacant lot she owned (hereinafter the subject property). Although thedismissal of the petitioner's appeal from the judgment in a previous CPLR article 78proceeding constituted an adjudication on the [*2]meritswith respect to the ZBA's findings that the petitioner's requested variance was substantialand her hardship was self-created (see Catalanotto v Abraham, 94 AD3d 937, 937 [2012]; Deutsche Bank Natl. Trust Co. vPosner, 89 AD3d 674, 675 [2011]; Auriemmo v Auriemmo, 87 AD3d 1090, 1091 [2011]), therecord before us does not support the ZBA's determination that granting the petitioner'ssecond application would produce an undesirable change in the neighborhood and have anegative impact on the surrounding physical and environmental conditions, or thatfeasible alternatives to granting a site capacity variance might exist.
On the contrary, the record reveals that, after approximately three years of, inter alia,working with the Village of Irvington Planning Board (hereinafter the Planning Board),engaging in public hearings, and consulting with various experts, the petitioner obtainedthe requisite permit approval to build on the subject property if certain conditions weremet. The Planning Board, as the lead agency under the State Environmental QualityReview Act (hereinafter SEQRA), issued a "Conditional Negative Declaration,"concluding that, so long as certain conditions were met, the proposed construction wouldnot have a significant adverse effect on the environment. Despite the Planning Board'sextensive environmental review of the petitioner's plans, the ZBA concluded that thepetitioner's proposed construction would have an adverse impact on the physical orenvironmental conditions of the neighborhood because the conditions imposed by thePlanning Board were "impractical" and "implausible." However, given the PlanningBoard's role in addressing environmental concerns (cf. Matter of Thorne v Village of Millbrook Planning Bd., 83AD3d 723, 725 [2011]), and in the absence of any further evidence to support itsconclusion, the ZBA's finding on this factor lacked a rational basis.
Likewise, the ZBA's determination that the petitioner's proposed construction wouldproduce an undesirable change in the neighborhood did not have a rational basis in therecord. Aside from the site capacity variance needed to build any structure on the subjectproperty, the plans submitted by the petitioner with her first application to the ZBA werein compliance with all applicable zoning codes for single-family dwellings. After herfirst application was denied, the petitioner addressed the ZBA's concerns by submittingnew plans for a smaller house with a redesigned roof. The ZBA summarily dismissedthese proposed changes as not "dramatic enough," citing, inter alia, an advisory opinionissued by the Planning Board, which characterized the petitioner's altered plans as a"modest revision." However, the Planning Board's advisory opinion made thisassessment of the petitioner's altered plans in connection with construction andpost-construction activities on the subject property, not as they related to the character ofthe neighborhood. Indeed, in her altered plans, the petitioner, inter alia, reduced thehouse's floor area ratio from 4,163 square feet to 3,484.9 square feet and the lot coveragefrom 2,100 square feet to 1,741 square feet. Furthermore, the ZBA's denial of thepetitioner's second application for a site capacity variance failed to address the factor offeasible alternatives.
Overall, the record does not contain sufficient factual and objective evidence tosupport the rationality of the ZBA's determinations denying the petitioner's applicationfor a site capacity variance (seeMatter of Cacsire v City of White Plains Zoning Bd. of Appeals, 87 AD3d 1135[2011]; cf. Matter of Ifrah v Utschig, 98 NY2d 304 [2002]). Accordingly, theSupreme Court properly concluded that the ZBA's determination was arbitrary andcapricious, annulled the determination, and remitted the matter to the ZBA to issue therequested variance.
In light of our determination, we need not reach the parties' remaining contentions.Rivera, J.P., Dickerson, Leventhal and Roman, JJ., concur.