Borrok v. Town of Southampton

• Decision Date: 29 July 2015
• Docket Number: 2014-11038
• Citation: 14 N.Y.S.3d 471,130 A.D.3d 1024,2015 N.Y. Slip Op. 06340
• Parties: In the Matter of Andrew BORROK, appellant, v. TOWN OF SOUTHAMPTON, et al., respondents.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1024

14 N.Y.S.3d 471

2015 N.Y. Slip Op. 06340

In the Matter of Andrew BORROK, appellant

v.TOWN OF SOUTHAMPTON, et al., respondents.

2014-11038

Supreme Court, Appellate Division, Second Department, New York.

July 29, 2015.

Mischel & Horn, P.C., New York, N.Y. (Scott T. Horn and Naomi M. Taub of counsel), for appellant.

Tiffany S. Scarlato, Town Attorney, Southampton, N.Y. (Kathryn V. Garvin of counsel), for respondents Town of Southampton and Zoning Board of Appeals of the Town of Southampton.

Farrell Fritz, P.C., Watermill, N.Y. (David J. Gilmartin, Jr., and Ryan Sirianni of counsel), for respondent 34 Cove, LLC.

WILLIAM F. MASTRO, J.P. JEFFREY A. COHEN, JOSEPH J. MALTESE, and BETSY BARROS, JJ.

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Southampton dated April 3, 2014, which, after a hearing, granted the application of 34 Cove, LLC, for certain area variances, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Garguilo, J.), dated November 10, 2014, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

On December 11, 2013, 34 Cove, LLC (hereinafter 34 Cove), applied to the Zoning Board of Appeals of the Town of Southampton (hereinafter the Zoning Board), for area variances which would permit it to build a tennis court in the front yard of its nonconforming lot. After a hearing, the Zoning Board granted 34 Cove's application. The petitioner, who opposed the application, commenced this CPLR article 78 proceeding seeking review of the determination granting the application. The Supreme Court denied the petition and dismissed the proceeding.

“ ‘Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion’ ”(Matter of Daneri v. Zoning Bd. of Appeals of the Town of Southold,

98 A.D.3d 508, 509, 949 N.Y.S.2d 180, quoting Matter of Matejko v. Board of Zoning Appeals of Town of Brookhaven, 77 A.D.3d 949, 949, 910 N.Y.S.2d 123 ). “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” (Matter of Matejko v. Board of Zoning Appeals of Town of Brookhaven, 77 A.D.3d at 949, 910 N.Y.S.2d 123 ; see Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384, 633 N.Y.S.2d 259, 657 N.E.2d 254 ). “ ‘It matters not whether, in close cases, a court would have, or should have, decided the matter differently. The judicial responsibility is to review zoning decisions but not, absent proof of arbitrary and unreasonable action, to make them’ ” (Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 N.Y.3d 608, 613, 781 N.Y.S.2d 234, 814 N.E.2d 404, quoting Matter of Cowan v. Kern, 41 N.Y.2d 591, 599, 394 N.Y.S.2d 579, 363 N.E.2d 305 ).

In determining whether to grant an application for an area variance, a zoning board is required to engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted (see Town Law § 267–b [3] [b] ; see also Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 N.Y.3d at 612, 781 N.Y.S.2d 234, 814 N.E.2d 404 ; Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 307–308, 746 N.Y.S.2d 667, 774 N.E.2d 732 )

Here, the Zoning Board engaged in the required balancing test and considered the relevant statutory factors (see Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 N.Y.3d at 614, 781 N.Y.S.2d 234, 814 N.E.2d 404 ; Matter of Caspian Realty, Inc. v. Zoning Bd. of Appeals of Town of Greenburgh, 68 A.D.3d 62, 78, 886 N.Y.S.2d 442 ). While we agree with the petitioner that the proposed variances were substantial (see Matter of Bull Run Props., LLC v. Town of Cornwall Zoning Bd. of Appeals, 50 A.D.3d 683, 855 N.Y.S.2d 585 ; Matter of Cortland LLC v. Zoning Bd. of Appeals of Vil. of Roslyn Estates, 21 A.D.3d 371, 800 N.Y.S.2d 35 ; Matter of McGlasson Realty v. Town of Patterson Bd. of Appeals, 234 A.D.2d 462, 463, 651 N.Y.S.2d 131 ), and that the alleged difficulty was self-created (see Matter of Ifrah v. Utschig, 98 N.Y.2d at 309, 746 N.Y.S.2d 667, 774 N.E.2d 732 ; Matter of Padwee v. Bronnes, 242 A.D.2d 334, 335, 661 N.Y.S.2d 52 ), there was no evidence that the granting of the variance would produce an undesirable change in the character of the neighborhood, have an adverse effect on physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community (see Matter of Goodman...