Fortunato v. Town of Hempstead Bd. of Appeals

• Decision Date: 09 December 2015
• Citation: 21 N.Y.S.3d 322,134 A.D.3d 825
• Parties: In the Matter of Annamarie FORTUNATO, et al., appellants, v. TOWN OF HEMPSTEAD BOARD OF APPEALS, respondent.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 825

21 N.Y.S.3d 322

In the Matter of Annamarie FORTUNATO, et al., appellants,

v.TOWN OF HEMPSTEAD BOARD OF APPEALS, respondent.

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

Dec. 9, 2015.

Fortunato & Fortunato, PLLC, Brooklyn, N.Y. (Louis A. Badolato of counsel), for appellants.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.

In a proceeding pursuant to CPLR article 78 to review two determinations of the Town of Hempstead Board of Appeals, both dated July 10, 2013, which, after a hearing, denied the petitioners' applications for area variances, the petitioners appeal from a judgment of the Supreme Court, Nassau County (Woodard, J.), dated December 3, 2013, which denied the petition and dismissed the proceeding.

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 Ifrah v. Utschig, 98 N.Y.2d 304, 308, 746 N.Y.S.2d 667, 774 N.E.2d 732 ; see Matter of Towers v. Weiss, 131 A.D.3d 621, 622, 14 N.Y.S.3d 918 ; Matter of Borrok v. Town of Southampton, 130 A.D.3d 1024, 14 N.Y.S.3d 471 ). Thus, "[a] zoning board's determination should be sustained on judicial review if it has a rational basis and is supported by evidence in the record" (Matter of Towers v. Weiss, 131 A.D.3d at 622, 14 N.Y.S.3d 918 [internal quotation marks omitted]; see Matter of Patrick v. Zoning Bd. of Appeals of Vil. of Russell Gardens, 130 A.D.3d 741, 15 N.Y.S.3d 50 ; Matter of Traendly v. Zoning Bd. of Appeals of Town of Southold,

127 A.D.3d 1218, 7 N.Y.S.3d 544 ).

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] ).

Here, the Town of Hempstead Board of Appeals (hereinafter the Board) performed the requisite balancing test (see Town Law § 267–b[3][b] ), and its conclusion that the detriment to the surrounding neighborhood posed by granting the requested variances outweighed the benefit to the petitioners had a rational basis and was supported by the record. In particular, the Board rationally found that granting the variances would produce an undesirable change in the character of the neighborhood (see Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 N.Y.3d 608, 615, 781 N.Y.S.2d 234, 814 N.E.2d 404 ; Matter of Sacher v. Village of Old Brookville, 124 A.D.3d 902, 904, 3 N.Y.S.3d 69 ; Matter of Kearney v. Village of Cold Spring Zoning Bd. of Appeals,

83 A.D.3d 711, 714, 920 N.Y.S.2d 379 ; Matter of Roberts v. Wright, 70 A.D.3d 1041, 1043, 896 N.Y.S.2d 124 ).

The petitioners contend that the Board's determinations were arbitrary and capricious because the Board had previously granted variances involving essentially the same facts and failed to adequately explain its reasons for reaching a different result in their case. Contrary to this contention, to the...