Matter of Millpond Management, Inc. v. Town of Ulster Zoning Board of Appeals

• Decision Date: 19 July 2007
• Docket Number: 502075.
• Citation: 2007 NY Slip Op 06154,42 A.D.3d 804,839 N.Y.S.2d 355
• Parties: In the Matter of MILLPOND MANAGEMENT, INC., et al., Appellants, v. TOWN OF ULSTER ZONING BOARD OF APPEALS, Respondent.
• Court: New York Supreme Court — Appellate Division

42 A.D.3d 804

839 N.Y.S.2d 355

2007 NY Slip Op 06154

In the Matter of MILLPOND MANAGEMENT, INC., et al., Appellants, v. TOWN OF ULSTER ZONING BOARD OF APPEALS, Respondent.

502075.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided July 19, 2007.

Appeal from a judgment of the Supreme Court (Bradley, J.), entered October 27, 2006 in Ulster County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioners' request for an area variance.

KANE, J.

On July 18, 2005, the Town Board of the Town of Ulster passed a resolution requiring a minimum lot size of 15,000 square feet for the construction of a single-family home on lots served by public water but not public sewers. The resolution and resulting change in zoning did not go into effect until July 28, 2005. On July 25, 2005, an individual who is also an officer of petitioner M & J Realty Services, Inc. entered into a contract to purchase a 12,065 square foot lot in the Town which is served by public water but not public sewers. The individual transferred the lot to petitioners, who later applied for an area variance allowing them to construct a residence on the lot. At a public hearing on the variance application, petitioners' engineer spoke in favor of the application and four neighbors spoke in opposition. Respondent denied the variance, with the only reason listed in its notice of decision being that the difficulty was self-created. Petitioners commenced this CPLR article 78 proceeding seeking to annul respondent's determination. Supreme Court dismissed the petition, prompting petitioners' appeal.

Petitioners were entitled to have respondent's determination annulled. In rendering a determination concerning an area variance, a zoning board of appeals is required to engage in a balancing test, weighing the potential benefit to the applicant against any detriment to the neighborhood's or community's health, safety and welfare (see Town Law § 267-b [3] [b]; Matter of Ifrah v Utschig, 98 NY2d 304, 307 [2002]). In addition, the zoning board is required to consider five statutory factors (see Town Law § 267-b [3] [b]). While one of those factors is "whether the alleged difficulty was self-created," the statute explains that this factor is relevant "but shall not necessarily preclude the granting of the area variance" (Town Law § 267-b [3] [b] [5]; see Matter of De Sena v Board of Zoning Appeals of Inc. Vil. of Hempstead, 45 NY2d 105, 108 [1978]).

Our judicial review of this administrative determination is limited solely to the legitimacy of the grounds invoked by respondent as the basis for its decision (see Matter of First Natl. Bank of Downsville v City of Albany Bd. of Zoning Appeals, 216 AD2d 680, 681 [1995]; see...