Foster v. DeChance
| Decision Date | 30 November 2022 |
| Docket Number | 2020–03119,Index No. 834/18 |
| Citation | 210 A.D.3d 1085,178 N.Y.S.3d 786 |
| Parties | In the Matter of Frederic C. FOSTER, appellant, v. Paul M. DECHANCE, etc., et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
210 A.D.3d 1085
178 N.Y.S.3d 786
In the Matter of Frederic C. FOSTER, appellant,
v.
Paul M. DECHANCE, etc., et al., respondents.
2020–03119
Index No. 834/18
Supreme Court, Appellate Division, Second Department, New York.
Submitted—October 11, 2022
November 30, 2022
Law Offices of Frederic C. Foster, P.C., Westhampton, NY (Erik C. Howard of counsel), for appellant.
Annette Eaderesto, Town Attorney, Farmingville, NY (John W. Doyle of counsel), for respondents.
FRANCESCA E. CONNOLLY, J.P., ANGELA G. IANNACCI, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of Brookhaven dated January 10, 2018, which, after a hearing, denied the petitioner's application for certain area variances, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), dated January 6, 2020. The judgment denied the petition and dismissed the proceeding.
ORDERED that the judgment is affirmed, with costs.
The petitioner is the owner of an unimproved 9,481–square–foot lot located in the Town of Brookhaven (hereinafter the subject parcel). The subject parcel and an adjoining developed parcel have been owned by members of the petitioner's family since the 1950s. In 1964, the Town imposed zoning requirements, and in the 1980s, the Town rezoned the area where the subject parcel is located. The current lot area requirement for a residential dwelling is a minimum lot size of 40,000 square feet.
In 2017, the petitioner requested a building permit for the subject parcel, which was denied. Thereafter, the petitioner applied to the Board of Zoning Appeals of the Town of Brookhaven (hereinafter the Board) for area, frontage, and front yard, side yard, and rear yard setback variances which would allow him to improve the subject parcel with a dwelling. After a hearing, the Board denied the petitioner's application, and the petitioner commenced this proceeding pursuant to CPLR article 78 to review the Board's determination. By judgment dated
January 6, 2020, the Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.
" ‘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 Zapson v. Zoning Bd. of Appeals of City of Long Beach, 193 A.D.3d 948, 948, 142 N.Y.S.3d 844, quoting Matter of Daneri v....
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...five statutory factors as long as its determination balancing the relevant considerations is rational'" (Matter of Foster v DeChance, 210 A.D.3d 1085, 1086, quoting Matter of Humphreys v Somers Zoning Bd. of Appeals, 206 A.D.3d 1000, 1002). Here, the BZA engaged in the required balancing te......