Feinberg- Smith Assocs., Inc. v. Town of Vestal Zoning Bd. of Appeals

• Decision Date: 27 December 2018
• Docket Number: 526070
• Citation: 91 N.Y.S.3d 578,167 A.D.3d 1350
• Parties: In the Matter of FEINBERG- SMITH ASSOCIATES, INC., Doing Business as Hayes Student Living Community, Appellant, v. TOWN OF VESTAL ZONING BOARD OF APPEALS, Respondent, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 1350

91 N.Y.S.3d 578

In the Matter of FEINBERG- SMITH ASSOCIATES, INC., Doing Business as Hayes Student Living Community, Appellant,

v.TOWN OF VESTAL ZONING BOARD OF APPEALS, Respondent, et al., Respondent.

526070

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

Calendar Date: November 13, 2018

Decided and Entered: December 27, 2018

Pope, Schrader & Pope, LLP, Binghamton (Alan J. Pope of counsel), for appellant.

Levene, Gouldin & Thompson, LLP, Vestal (Cynthia Ann Manchester of counsel), for Town of Vestal Zoning Board of Appeals, respondent.

Before: McCarthy, J.P., Lynch, Clark, Mulvey and Rumsey, JJ.

MEMORANDUM AND ORDER

McCarthy, J.P.Appeal from a judgment of the Supreme Court (Faughnan, J.), entered August 16, 2017 in Broome County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Town of Vestal Zoning Board of Appeals denying petitioner's request for three zoning variances.

Petitioner's property in the Town of Vestal, Broome County contains eight buildings with one- and two-bedroom apartments leased to students who attend a nearby university. Seeking approval of a project to create additional housing on this property, petitioner filed an application with respondent Town of Vestal Zoning Board of Appeals (hereinafter the ZBA) for five area variances. During the hearing process, petitioner withdrew two of its variance requests, but retained its requests to increase the number of dwelling units based on the lot size, decrease the minimum living area per unit and decrease the required number of parking spaces. After the ZBA denied the variance requests, petitioner commenced this CPLR article 78 proceeding challenging that determination. Supreme Court dismissed the petition. Petitioner appeals.

The ZBA's decision was supported by the record and had a rational basis. "Courts may set aside a zoning board determination only where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure. A determination of a zoning board should be sustained on judicial review if it has a rational basis" and is supported by the record ( 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 [2004] [citations omitted]; see CPLR 7803[3] ; Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 308, 746 N.Y.S.2d 667, 774 N.E.2d 732 [2002] ; Matter of Wen Mei Lu v. City of Saratoga Springs, 162 A.D.3d 1291, 1292, 78 N.Y.S.3d 764 [2018] ; Matter of Russo v. City of Albany Zoning Bd., 78 A.D.3d 1277, 1279, 910 N.Y.S.2d 263 [2010] ). When deciding whether to grant a variance, a zoning board must "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. The zoning board is also required to consider whether (1) 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) the benefit sought by the applicant can be achieved through some other method, feasible for the applicant to pursue, other than an area variance; (3) the requested area variance is substantial; (4) the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) the alleged difficulty was self-created" ( Matter of Ifrah v. Utschig, 98 N.Y.2d at 307–308, 746 N.Y.S.2d 667, 774 N.E.2d 732 [internal citation omitted]; see Town Law § 267–b [3 ][b] ). "[S]cientific or expert testimony is not required in every case to support a zoning board's determination" ( Matter of Ifrah v. Utschig, 98 N.Y.2d at 308, 746 N.Y.S.2d 667, 774 N.E.2d 732 ). Regardless of how a court might have decided the matter in the first instance, the court's function is only to review the zoning board's decision rather than substitute its own judgment (see Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 N.Y.3d at 613, 781 N.Y.S.2d 234, 814 N.E.2d 404 ).

When rendering its decision, the ZBA was "not required to justify its determination with supporting evidence with respect to each of the five factors, so long as its ultimate determination balancing the relevant considerations was rational" ( Matter of Merlotto v. Town of Patterson Zoning Bd. of Appeals, 43 A.D.3d 926, 929, 841 N.Y.S.2d 650 [2007] ; see Matter of Cohen v. Town of Ramapo Bldg., Planning & Zoning Dept., 150 A.D.3d 993, 994, 54 N.Y.S.3d 650 [2017] ). The record reflects the large differences between a project as permitted under the zoning regulations and the relief requested by petitioner. The regulation for minimum lot size would permit 154 units on the property, whereas petitioner sought permission for a total of 409 apartments. Petitioner sought to reduce the minimum living space per unit from 750 square feet to 474 square feet. Petitioner also sought to reduce the number of required parking spaces from 818 to 309. Under its proposal, petitioner intended to lease to...