Daneri v. Zoning Bd. of Appeals of Southold

• Decision Date: 01 August 2012
• Citation: 2012 N.Y. Slip Op. 05820,949 N.Y.S.2d 180,98 A.D.3d 508
• Parties: In the Matter of Eugene L. DANERI, petitioner-respondent, v. ZONING BOARD OF APPEALS OF the TOWN OF SOUTHOLD, appellant, Thornton Smith, etc., respondent-respondent.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 508

949 N.Y.S.2d 180

2012 N.Y. Slip Op. 05820

In the Matter of Eugene L. DANERI, petitioner-respondent,

v.ZONING BOARD OF APPEALS OF the TOWN OF SOUTHOLD, appellant,Thornton Smith, etc., respondent-respondent.

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

Aug. 1, 2012.

Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead, N.Y. (Phil Siegel of counsel), for appellant.

Eugene L. Daneri, Mattituck, N.Y., petitioner-respondentpro se.

Wickham Bressler Gordon & Geasa, P.C., Mattituck, N.Y. (Eric J. Bressler of counsel), for respondent-respondent.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and ROBERT J. MILLER, JJ.

In a proceeding pursuant to CPLR article 78 to review so much of a determination of the Zoning Board of Appeals of the Town of Southold dated October 1, 2007, as, after a hearing, denied those branches of the petitioner's application which were for certain side yard and bulkhead setback variances, the Zoning Board of Appeals of the Town of Southold appeals from a judgment of the Supreme Court, Suffolk County(Spinner, J.), dated October 13, 2010, which granted the petition, annulled so much of the determination as denied those branches of the petitioner's application which were for certain side yard and bulkhead setback variances, and remitted the matter to the Zoning Board of Appeals of the Town of Southold to grant those variances.

ORDERED that the judgment is affirmed, without costs or disbursements.

“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 Matejko v. Board of Zoning Appeals of Town of Brookhaven,77 A.D.3d 949, 949, 910 N.Y.S.2d 123;seeMatter of Ifrah v. Utschig,98 N.Y.2d 304, 308, 746 N.Y.S.2d 667, 774 N.E.2d 732;Matter of Halperin v. City of New Rochelle,24 A.D.3d 768, 771, 809 N.Y.S.2d 98).“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;seeMatter of Sasso v. Osgood,86 N.Y.2d 374, 384, 633 N.Y.S.2d 259, 657 N.E.2d 254;Matter of Monroe Beach, Inc. v. Zoning Bd. of Appeals of City of Long Beach, N.Y.,71 A.D.3d 1150, 898 N.Y.S.2d 194).

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 ( seeTown Law § 267–b[3][b];see alsoMatter of Pecoraro v. Board of Appeals of Town of Hempstead,2 N.Y.3d 608, 612, 781 N.Y.S.2d 234, 814 N.E.2d 404).In making its determination, the zoning board must consider: “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area 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 variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance”(Town Law...