MATTER OF IFRAH v. UTSCHIG
| Decision Date | 01 July 2002 |
| Citation | 98 N.Y.2d 304,774 N.E.2d 732,746 N.Y.S.2d 667 |
| Parties | In the Matter of PHILIPPE IFRAH, Respondent, v. W. CHARLES UTSCHIG, JR., et al., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
Jonathan D. Kraut, Village Attorney, Harrison (Joseph L. Latwin of counsel), for appellants.
Phillip A. Grimaldi, Jr., Harrison, for respondent.
In 1996, petitioner Philippe Ifrah purchased a 0.77-acre parcel of land on Fenimore Drive in the Town of Harrison, Westchester County. A single-family residence constructed in 1928 sits on the southern portion of the parcel. The Town's 1928 subdivision map originally designated the property as two separate lots. Those lots merged in 1974 as a result of common ownership. Some time after the original subdivision but prior to the merger, the Town adopted a zoning ordinance designating the area in which the parcel is located as a residential district, which requires one acre of land and a 100-foot minimum lot width for the construction of a one-family dwelling.
Shortly after purchasing the property, petitioner sought to subdivide the already nonconforming parcel into two separate lots. According to petitioner's plan, the lot containing the existing dwelling would be approximately 0.40 of an acre with a width of 93.13 feet, and the second lot, on which a new dwelling would be constructed, would be approximately 0.37 of an acre with a width of 79.16 feet. Petitioner applied for the four area variances required for the subdivision.
After a public hearing, site visit and consideration of all the statutory factors set forth in Town Law § 267-b, respondent Zoning Board of Appeals of the Town of Harrison unanimously denied petitioner's application. The Board held that the granting of the variance would create two substantially substandard lots, both deviating from the one-acre requirement by 60% or more. The Board also held that the variances would have a significant impact upon, and change the character of, the neighborhood.
Petitioner commenced this CPLR article 78 proceeding challenging the Board's determination. Supreme Court denied the petition and dismissed the proceeding, concluding that the Board's determination was rational and supported by the record. The Appellate Division, with one Justice dissenting, reversed Supreme Court's judgment, granted the petition, annulled the Board's determination and remitted the matter to the Board for issuance of the area variances (282 AD2d 458 [2001]). The Appellate Division held that the Board's determination was not supported by substantial evidence. It based its holding solely on the facts that 33 of the 39 lots within 500 feet of petitioner's parcel were substandard, and 20 of those 39 lots were smaller than the smaller of the two lots that would be created by the subdivision.
In dissent, Justice Krausman concluded that the majority failed to take into account the evidence supporting the numerous other factors considered by the Board in denying the variances, and that the Board's determination was rational and supported by substantial evidence. We agree and now reverse.
In making its determination whether to grant an area variance, a zoning board of appeals is required, pursuant to Town Law § 267-b (3), 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 Matter of Sasso v Osgood, 86 NY2d 374, 382, 384 [1995]). 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 by 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. Petitioner is correct that the last factor is not dispositive. Neither, however, is it irrelevant.
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...
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