Phillip A. Grimaldi, Jr., Harrison, for petitioners.
Jonathan D. Kraut, Village Attorney of Town and Village of Harrison, for respondents.
Peter M. Leavitt, J.
Ordered that this petition is disposed of as follows: Petition is granted to the extent that the matter is remanded to the
Zoning Board of Appeals for the Town of Harrison for further proceedings consistent with this decision.
The petitioners erected a fence along portions of their property abutting the adjacent streets. Sometime subsequent thereto, petitioners sought to legalize the fence. In the process, they discovered that the fence would require a variance from local zoning ordinances in order to remain as erected. Petitioners applied to the respondent Zoning Board of Appeals (hereinafter referred to as the ZBA) for the necessary variance. On or about April 6, 2001, the ZBA denied petitioners' application. Petitioners instituted this CPLR article 78 proceeding to review the ZBA's determination.
Prior to the enactment of Town Law § 267-b, the courts had long held: " It is incumbent upon an applicant for an area variance to demonstrate that 'strict compliance with the zoning ordinance will result in practical difficulties' [citations omitted]." (Matter of Fuhst v Foley, 45 N.Y.2d 441, 445  [emphasis supplied].) Town Law § 267-b altered the standard by which area variances are considered. Now:
" The standard for area variances is contained in section 267-b (3) of the Town Law in a provision that does not expressly require the applicant to prove 'practical difficulties'. It states:
" 'In making its determination [whether to grant an area variance], the zoning board of appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider: (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 benefit 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, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.'
(Town Law § 267-b  [b] [emphasis added].)" (Sasso v Osgood, 86 N.Y.2d 374, 382 .)
The above-mentioned change in the Town Law has not altered the standard for judicial review of Zoning Board of Appeals determinations.
" In reviewing a determination of a zoning board of appeals to deny an application for an area variance, the scope of judicial review is limited to whether the action taken is illegal, arbitrary, or an abuse of discretion (see, Matter of Tarantino v Zoning Bd. of Appeals,228 A.D.2d 511; Matter of Smith v Board of Appeals,202 A.D.2d 674). The court may not substitute its judgment for that of the Board unless its determination is arbitrary or contrary to law (see, Matter of Brucia v Planning Bd.,157 A.D.2d 657). If the Board's determination is supported by substantial evidence and has a rational basis, it will not be disturbed (see, Matter of Fuhst v Foley,45 N.Y.2d 441; Matter of ...