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

• Decision Date: 09 November 2010
• Citation: 78 A.D.3d 842,911 N.Y.S.2d 391
• Parties: In the Matter of Marguerite SWITZGABLE, also known as "Meg" Switzgable, et al., respondents-appellants, v. BOARD OF ZONING APPEALS OF the TOWN OF BROOKHAVEN, et al., appellants-respondents.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 391

78 A.D.3d 842

In the Matter of Marguerite SWITZGABLE, also known as "Meg" Switzgable, et al., respondents-appellants,

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

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

Nov. 9, 2010.

Robert F. Quinlan, Town Attorney, Farmingdale, N.Y. (James J. Kevins of counsel), for appellants-respondents Board of Zoning Appeals of the Town of Brookhaven and the Town of Brookhaven.

Scheyer & Jellenik, Nesconset, N.Y. (Richard I. Scheyer of counsel), for appellant-respondent Edward S. Lewis.

Matthew R. Atkinson, Jackson Heights, N.Y. (Albert K. Butzel of counsel), for respondents-appellants.

WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, JOHN M. LEVENTHAL, and ARIEL E. BELEN, 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 April 1, 2009, which, after a hearing, granted the application of Edward S. Lewis for eight area variances, the Board of Zoning Appeals of the Town of Brookhaven and the Town of Brookhavenappeal, and Edward S. Lewis separately appeals, and as limited by their respective briefs, from so much of a judgment of the Supreme Court, Suffolk County (Mayer, J.), dated October 22, 2009, as granted the amended petition to the extent of annulling that portion of the determination which granted Edward S. Lewis a variance to erect a 10-foot solid fence on his eastern property line, and the petitioners cross-appeal, as limited by their brief, from so much of the same judgment as denied those branches of the amended petition which were to annul those portions of the determination which granted Edward S. Lewis the seven additional area variances.

ORDERED that judgment is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the judgment is reversed insofar as cross-appealed from, on the law, without costs or disbursements, and those branches of the amended petition which were to annul those portions of the determination as granted Edward S. Lewis the seven additional area variances are granted.

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 and capricious, or an abuse of discretion ( see Matter of Fuhst v. Foley, 45 N.Y.2d 441, 444, 410 N.Y.S.2d 56, 382 N.E.2d 756). A determination of a zoning board after a hearing should be sustained if it has a rational basis ( 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 Ceballos v. Zoning Bd. of Appeals of Town of Mount Pleasant, 304 A.D.2d 575, 758 N.Y.S.2d 139; Matter of Linzenberg v. Summer, 277 A.D.2d 316, 715 N.Y.S.2d 886).

In determining an application for an area variance, a zoning board must engage in a balancing test, weighing the benefit tothe applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the area variance is granted ( see Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384, 633 N.Y.S.2d 259, 657 N.E.2d 254). A zoning board must consider (1) whether the granting of the variance would result in an undesirable change in the character of the neighborhood, or a detriment to neighboring properties, (2) whether the benefit sought can be achieved by some method other than an area variance, (3) whether the requested variance is substantial, (4) whether the grant of the variance will have an adverse impact upon the physical or environmental conditions in the neighborhood, and (5) whether the alleged difficulty is self-created ( see Town Law § 267-b[3] [b] ).

Here, the determination of the Board of Zoning...