Foster v. DeChance

210 A.D.3d 1085

178 N.Y.S.3d 786

In the Matter of Frederic C. FOSTER, appellant,

v.Paul M. DECHANCE, etc., et al., respondents.

2020–03119

Index No. 834/18

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

Submitted—October 11, 2022

November 30, 2022

Law Offices of Frederic C. Foster, P.C., Westhampton, NY (Erik C. Howard of counsel), for appellant.

Annette Eaderesto, Town Attorney, Farmingville, NY (John W. Doyle of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P., ANGELA G. IANNACCI, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of Brookhaven dated January 10, 2018, which, after a hearing, denied the petitioner's application for certain area variances, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), dated January 6, 2020. The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

The petitioner is the owner of an unimproved 9,481–square–foot lot located in the Town of Brookhaven (hereinafter the subject parcel). The subject parcel and an adjoining developed parcel have been owned by members of the petitioner's family since the 1950s. In 1964, the Town imposed zoning requirements, and in the 1980s, the Town rezoned the area where the subject parcel is located. The current lot area requirement for a residential dwelling is a minimum lot size of 40,000 square feet.

In 2017, the petitioner requested a building permit for the subject parcel, which was denied. Thereafter, the petitioner applied to the Board of Zoning Appeals of the Town of Brookhaven (hereinafter the Board) for area, frontage, and front yard, side yard, and rear yard setback variances which would allow him to improve the subject parcel with a dwelling. After a hearing, the Board denied the petitioner's application, and the petitioner commenced this proceeding pursuant to CPLR article 78 to review the Board's determination. By judgment dated January 6, 2020, the Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.

" ‘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 discretion’ " ( Matter of Zapson v. Zoning Bd. of Appeals of City of Long Beach, 193 A.D.3d 948, 948, 142 N.Y.S.3d 844, quoting Matter of Daneri v. Zoning Bd. of Appeals of the Town of Southold, 98 A.D.3d 508, 509, 949 N.Y.S.2d 180 [internal quotation marks omitted]). "The determination of a local zoning board is entitled to great deference, and will be set aside only if it is illegal, arbitrary and capricious, or irrational" ( Matter of Grosso v. DeChance, 205 A.D.3d 1026, 1027, 166 N.Y.S.3d 888 [internal quotation marks omitted]; see Matter of Bennett v. Zoning Bd. of Appeals of Vil. of Sagaponack, 170 A.D.3d 716, 717, 96 N.Y.S.3d 246 ).

In determining whether to grant an area variance to an applicant, a zoning board "is required to engage in a balancing test, weighing the benefit of the grant to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted" ( Matter of Morris Motel, LLC v. DeChance, 199 A.D.3d 687, 688, 153 N.Y.S.3d 897 ; see Town Law § 267–b(3)(b) ; Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 N.Y.3d 608, 612, 781 N.Y.S.2d 234, 814 N.E.2d 404 ; Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 307, 746 N.Y.S.2d 667, 774 N.E.2d 732 ). Pursuant to Town Law § 267–b(3)(b), in making that determination, a zoning board "must consider whether (1) an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will result by the granting of the area variance, (2) the benefit sought by the applicant can be achieved by some feasible method other than an area variance, (3) the requested area variance is substantial, (4) the proposed variance will adversely impact the physical or environmental conditions in the neighborhood if it is granted, and (5) the alleged difficulty was self-created" ( Matter of Grosso v. DeChance, 205 A.D.3d at 1027–1028, 166 N.Y.S.3d 888 ; see Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384, 633 N.Y.S.2d 259, 657 N.E.2d 254 ). "The zoning board, in applying the balancing test, is not required to justify its determination with supporting evidence for each of the five statutory factors as long as its determination balancing the relevant considerations is rational" ( Matter of Humphreys v. Somers Zoning Bd. of Appeals, 206...