White Birch Circle Realty Corp. v. DeChance

212 A.D.3d 729

182 N.Y.S.3d 719

In the Matter of WHITE BIRCH CIRCLE REALTY CORP., appellant,

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

2020–04189

Index No. 3228/19

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

Argued—October 11, 2022

January 18, 2023

Scheyer & Stern, LLC, Nesconset, NY (Patricia A. Stern 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 May 8, 2019, which, after a hearing, denied the petitioner's application for area variances, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Martha L. Luft, J.), dated April 23, 2020. The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

The petitioner, the owner of vacant real property in the Town of Brookhaven, applied to the Town's Board of Zoning Appeals (hereinafter the BZA) for area variances to build a single-family house, with intended access through an unimproved roadway. Specifically, the petitioner sought variances for lot area, lot frontage, front yard setback, rear yard setback, and minimum and total side yard setbacks. After a hearing, the BZA denied the application, and the petitioner commenced the instant CPLR article 78 proceeding to review the BZA's determination. By judgment dated April 23, 2020, the Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.

Local zoning boards have broad discretion in considering variance applications, and judicial review is limited to determining whether the action taken by the board was affected by an error of law, arbitrary and capricious, or an abuse of discretion (see CPLR 7803[3] ; Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 N.Y.3d 608, 613, 781 N.Y.S.2d 234, 814 N.E.2d 404 ; Matter of Harn Food, LLC v. DeChance, 159 A.D.3d 819, 72 N.Y.S.3d 538 ). A determination of a zoning board should be sustained upon judicial review if it has a rational basis and "the record contains sufficient evidence to support the rationality of the determination" ( Matter of Harn Food, LLC v. DeChance, 159 A.D.3d at 820, 72 N.Y.S.3d 538 ; see Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384 n. 2, 633 N.Y.S.2d 259, 657 N.E.2d 254 ).

In considering an application for area variances, Town Law § 267–b(3)(b) requires a zoning board to engage in a balancing test, weighing the benefit to the petitioner against the detriment to the health, safety, and welfare of the neighborhood or community if the area variances are granted (see Town Law § 267–b[3][b] ; Matter of Sasso v. Osgood, 86 N.Y.2d at 384, 633 N.Y.S.2d 259, 657 N.E.2d 254 ). In particular, 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...