In the Matter of Fnr Home Construction Corp. v. Downs

• Citation: 868 N.Y.S.2d 310,2008 NY Slip Op 09597,57 A.D.3d 540
• Decision Date: 02 December 2008
• Docket Number: 2008-02799.
• Parties: In the Matter of FNR HOME CONSTRUCTION CORP., Petitioner, v. CHRISTOPHER DOWNS et al., Respondents.
• Court: New York Supreme Court — Appellate Division

57 A.D.3d 540

868 N.Y.S.2d 310

2008 NY Slip Op 09597

In the Matter of FNR HOME CONSTRUCTION CORP., Petitioner, v. CHRISTOPHER DOWNS et al., Respondents.

2008-02799.

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

December 2, 2008.

Proceeding pursuant to CPLR article 78 to review a determination of the Village of Floral Park Board of Appeals dated September 24, 2007, which, after a hearing, denied the petitioner's application for a parking variance.

Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

Since 2004 the petitioner has owned a vacant parcel of real property located in the Village of Floral Park. In 2007 the petitioner applied to the Village of Floral Park Board of Appeals (hereinafter the Board) for a parking variance in order to develop the property for retail purposes. Because the parcel is located within the Village's B2 business district, the proposed development required eight on-site parking spaces, whereas the petitioner's plan proposed no on-site parking.

After the Board conducted a public hearing, it denied the variance application. The petitioner commenced the instant CPLR article 78 proceeding to annul the determination and obtain the requested variance. The Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804 (g).

Initially, we note that the Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804 (g) since the determination to be reviewed was not made after a hearing held pursuant to direction of law at which evidence was taken (see CPLR 7803 [4]; Matter of Sasso v Osgood, 86 NY2d 374, 384 n 2 [1995]; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 769 [2005]; Matter of Milt-Nik Land Corp. v City of Yonkers, 24 AD3d 446, 447 [2005]; see also Village Law § 7-712-c [4]). Nevertheless, in the interest of judicial economy, we will decide the case on the merits (see Matter of Silvera v Town of Amenia Zoning Bd. of Appeals, 33 AD3d 706, 707-708 [2006]; Matter of Halperin v City of New Rochelle, 24 AD3d at 772-773; Matter of Country Glen Assoc. v Newburger, 305 AD2d 594, 595 [2003]). Upon our review, we deny the petition and dismiss the proceeding.

"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" (Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; see Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Josato, Inc. v Wright, 35 AD3d 470, 471 [2006]). A determination of a zoning board should be sustained on judicial review if it has a rational basis and is supported by the evidence in the record (see Matter of Ifrah v Utschig, 98 NY2d at 308; Matter of Fuhst v Foley, 45 NY2d 441, 444 [1978]; Matter of Josato, Inc. v Wright, 35 AD3d 470, 471 [2006]).

Before deference is accorded to the determination of a zoning board in a matter such as the one before us, it must appear that the zoning board engaged in a balancing test "weighing the petitioner's interest against the interest of the neighborhood" based on consideration of the factors delineated in Village Law § 7-712-b (3) (Matter of Ifrah v Utschig, 98 NY2d at 304; see Matter of Gallo v Rosell, 52 AD3d 514, 516 [2008]). Those factors are: "(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 benefits sought by the applicant can be achieved by some other 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" (Matter of Sasso v Osgood, 86 NY2d at 382 [internal quotation marks omitted]; see Matter of Picarelli v Karl, 51 AD3d 1028, 1029 [2008]; Matter of Efraim v Trotta, 17 AD3d 463 [2005]). "The need to alleviate traffic congestion by requiring adequate parking facilities" is a legitimate consideration for a zoning board of appeals (Matter of Il Classico...