In the Matter of Joseph D. Conway, et al., appellants,
Arlene Van Loan, Chairperson, et al., respondents. Index No. 1346/15
- May 12, 2017
Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP,
Uniondale, NY (Jeffrey D. Forchelli and Nathan R. Jones of
counsel), for appellants.
Sinnreich Kosakoff & Messina LLP, Central Islip, NY
(Timothy F. Hill of counsel), for respondents.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
proceeding pursuant to CPLR article 78 to review a
determination of the Town of Oyster Bay Zoning Board of
Appeals, dated November 6, 2014, which, after a hearing,
denied the petitioners' applications for area variances,
the petitioners appeal from a judgment of the Supreme Court,
Nassau County (Feinman, J.), entered August 17, 2015, which
denied the petition and dismissed the proceeding.
that the judgment is affirmed, with costs.
petitioners commenced this CPLR article 78 proceeding
contending that the determination of the Town of Oyster Bay
Zoning Board of Appeals (hereinafter the ZBA) to deny their
applications for area variances lacked a rational basis, and
was arbitrary and capricious. The Supreme Court denied the
petition and dismissed the proceeding, holding that the ZBA
had balanced and weighed the statutory factors enumerated in
Town Law § 267-b(3)(b), and that its determination to
deny the requested variances had a rational basis and was not
arbitrary or capricious. The petitioners appeal.
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'"
(Matter of Daneri v Zoning Bd. of Appeals of the Town of
Southold, 98 A.D.3d 508, 509, quoting Matter of
Matejko v Board of Zoning Appeals of Town of Brookhaven,
77 A.D.3d 949, 949). "Where a rational basis for the
determination exists, 'a court may not substitute its own
judgment for that of the board, even if such a contrary
determination is itself supported by the record'"
(Matter of Roberts v Wright, 70 A.D.3d 1041, 1042,
quoting Matter of Retail Prop. Trust v Board of Zoning
Appeals of Town of Hempstead, 98 N.Y.2d 190, 196). Thus,
"[c]ourts may set aside a zoning board determination
only where the record reveals that the board acted illegally
or arbitrarily, or abused its discretion, or that it merely
succumbed to generalized community pressure" (Matter
of Pecoraro v Board of Appeals of Town of Hempstead, 2
N.Y.3d 608, 613).
determining whether to grant an application for an area
variance, a zoning board must 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 (see Town Law § 267-b[b];
Matter of Sasso v Osgood, 86 N.Y.2d 374). The zoning
board must also consider whether (1) an undesirable change
will be produced in the character of the neighborhood or a
detriment to nearby properties if the area variance is
granted, (2) the benefit sought by the applicant can be
achieved by some method, feasible to the applicant, other
than an area variance, (3) the required area variance is
substantial, (4) the proposed variance will have an adverse
effect or impact on physical or environmental conditions in
the neighborhood if it is granted, and (5) the alleged
difficulty was self-created (see Town Law §
267-b[b]; Matter of Ifrah v Utschig, 98 N.Y.2d
the ZBA engaged in the requisite balancing test and
considered the five statutory factors (see Town Law §
267-b[b]). The record reveals that the ZBA's
conclusion that the detriment to the surrounding neighborhood
posed by granting the requested variances outweighed the
benefit to the petitioners had a rational basis and was not
arbitrary or capricious (see Matter of Pecoraro v Board
of Appeals of Town of Hempstead, 2 N.Y.3d 608;
Matter of Sasso v Osgood, 86 N.Y.2d 374; Matter
of Caspian Realty, Inc. v Zoning Bd. of Appeals of Town of
Greenburgh, 68 A.D.3d 62; Matter of Allstate Props.,
LLC v Board of Zoning Appeals of Vil. of Hempstead, 49
A.D.3d 636). The ZBA also rationally concluded that the
requested variances were substantial in nature, that the
petitioners had feasible alternatives which did not require
variances, and that the requested variances would cause an
undesirable change in the character of the neighborhood.
the Supreme Court properly denied the petition and ...