Matejko v. Bd. of Zoning Appeals of Town of Brookhaven

• Decision Date: 26 October 2010
• Citation: 910 N.Y.S.2d 123,77 A.D.3d 949
• Parties: In the Matter of George MATEJKO, appellant, v. BOARD OF ZONING APPEALS OF TOWN OF BROOKHAVEN, et al., respondents.
• Court: New York Supreme Court — Appellate Division

910 N.Y.S.2d 123

77 A.D.3d 949

In the Matter of George MATEJKO, appellant,

v.BOARD OF ZONING APPEALS OF TOWN OF BROOKHAVEN, et al., respondents.

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

Oct. 26, 2010.

Garrett W. Swenson, Jr., Brookhaven, N.Y., for appellant.

Robert F. Quinlan, Town Attorney, Farmingville, N.Y. (Julie L. Yodice of counsel), for respondents.

JOSEPH COVELLO, J.P., FRED T. SANTUCCI, RUTH C. BALKIN, and LEONARD B. AUSTIN, JJ.

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of Brookhaven dated July 16, 2008, which, after a hearing, denied the petitioner's application for area variances, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Farneti, J.), dated December 30, 2009, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

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 ( see Matter 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 ( see Matter 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). Contrary to the contention of the Board of Zoning Appeals of the Town of Brookhaven (hereinafter the BZA), the "substantial evidence" standard of review is inapplicable to a zoning board's determination of an application for an area variance, since such a determination is not made after a hearing at which evidence is taken pursuant to direction of law ( see CPLR 7803[4] ). Rather, "[w]hen reviewing the determinations of a Zoning Board, courts consider 'substantial evidence' only to determine whether the record contains sufficient evidence to support the rationality of the Board's determination" ( matter of sasso V. osgood, 86 N.y.2d at 384 N. 2, 633 n.y.s.2d 259, 657 N.E.2d 254; see Matter of Halperin v. City of New Rochelle, 24 A.D.3d at 769-770, 809 N.Y.S.2d 98).

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 detrimentto the health, safety, and welfare of the neighborhood or community if the variance is granted ( see Town Law § 267-b[3][b]; Matter 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 that determination, the zoning board must 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 by some 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 ( see Town Law § 267-b[3][b] ).

Here, the BZA engaged in the required balancing test and considered the relevant statutory factors, and its denial of the petitioner's application for area variances had a rational basis, and was not illegal or arbitrary and capricious. The BZA's findings that the requested variances were substantial, would result in a detriment to nearby properties, would have an adverse effect on the physical...