Stelling v. Gaudioso

204 A.D.3d 788

164 N.Y.S.3d 485 (Mem)

In the Matter of the ESTATE OF Linda H. STELLING, appellant,

v.Robert GAUDIOSO, etc., et al., respondents.

2019–05704, (Index 5217/18)

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

Submitted—January 14, 2022

April 13, 2022

Law Office of Vincent J. Trimarco, LLP, Smithtown, NY (Clare B. Connaughton of counsel), for appellant.

Campolo, Middleton & McCormick, LLP, Ronkonkoma, NY (Scott D. Middleton and Richard A. DeMaio of counsel), for respondents.

ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Appeals of the Incorporated Village of Lake Grove dated September 5, 2018, which, after a hearing, denied the petitioner's applications for area variances, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Vincent J. Martorana, J.), dated April 12, 2019. The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

The petitioner is the owner of real property in the Village of Lake Grove consisting of a 16,000–square–foot lot, improved by a single-family residence. The property is located in a residential zoning district requiring a minimum lot size of 20,000 square feet. The petitioner submitted a minor subdivision application to the Lake Grove Village Planning Board (hereinafter the Planning Board) seeking to subdivide the property into two lots. The first lot would total 6,000 square feet and would include the existing single-family residence. The second lot would consist of the remaining 10,000 square feet, on which the petitioner proposed to build a new single-family residence. The Planning Board instructed the petitioner to apply to the Zoning Board of Appeals of the Incorporated Village of Lake Grove (hereinafter the ZBA) for the necessary area variances. The petitioner then submitted two variance applications to the ZBA. The first application requested, inter alia, a variance from the 20,000–square–foot lot area requirement down to 6,000 square feet. The second application requested, among other things, a variance from the 20,000–square–foot lot area requirement down to 10,000 square feet. After a hearing, where the petitioner indicated its intention to sell both houses if the variances were granted, the ZBA denied the petitioner's applications. The petitioner then commenced this proceeding pursuant to CPLR article 78 to annul the ZBA's determination denying the requested area variances, asserting, inter alia, that it was arbitrary and capricious. In a judgment dated April 12, 2019, the Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.

"In determining whether to grant an area variance, a zoning board of appeals is required to 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" ( Matter of deBordenave v. Village of Tuxedo Park Bd. of Zoning Appeals, 168 A.D.3d 838, 839, 92 N.Y.S.3d 132 ; see also Village Law § 7–712–b[3][b] ). In making that determination, a zoning board must 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 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" ( Village Law § 7–712–b[3][b] ). "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 Stengel v. Town of Poughkeepsie Zoning Bd. of Appeals, 167 A.D.3d...