Opinion
MOTION NO. (108/22) CA 21-01074
09-30-2022
In the Matter of Elverna D. GIDNEY, Petitioner-Appellant, et al., Petitioner, v. ZONING BOARD OF APPEALS OF CITY OF BUFFALO, Planning Board of City of Buffalo, Symphony Property Management LLC and Michigan-Redev LLC, Respondents-Respondents.
Motion for reargument is granted in part and, upon reargument, the memorandum and order entered July 1, 2022 ( 207 A.D.3d 1025, 171 N.Y.S.3d 274 [4th Dept. 2022] ) is amended by deleting the second paragraph of the memorandum and substituting the following paragraph:
We reject petitioner's contention that the determination to grant the developers’ application for the area variances lacks a rational basis and is not supported by substantial evidence (see generally 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 [2004] ). "[T]he determination whether to grant or deny an application for an area variance is committed to the broad discretion of the applicable local zoning board" ( Matter of People, Inc. v. City of Tonawanda Zoning Bd. of Appeals , 126 A.D.3d 1334, 1335, 6 N.Y.S.3d 817 [4th Dept. 2015] ). "Where there is substantial evidence in the record to support the rationality of the ZBA's determination, the determination
should be affirmed upon judicial review" ( Matter of Buckley v. Zoning Bd. of Appeals of City of Geneva , 189 A.D.3d 2080, 2081, 139 N.Y.S.3d 732 [4th Dept. 2020] ; see Matter of Ifrah v Utschig , 98 N.Y.2d 304, 308, 746 N.Y.S.2d 667, 774 N.E.2d 732 [2002] ). Here, upon our review of the record, we conclude that "the ZBA properly took into account the relevant factors set forth in [ General City Law § 81–b (4) ] and made detailed findings with respect to those factors, and we conclude that its determination to grant the variances is not illegal, arbitrary, or an abuse of discretion" ( Matter of Campaign for Buffalo History Architecture & Culture, Inc. v. Zoning Bd. of Appeals of City of Buffalo , 174 A.D.3d 1304, 1306, 105 N.Y.S.3d 731 [4th Dept. 2019], lv denied 34 N.Y.3d 912, 2020 WL 1467015 [2020] ; see Matter of DeGroote v. Town of Greece Bd. of Zoning Appeals , 35 A.D.3d 1177, 1178, 825 N.Y.S.2d 878 [4th Dept. 2006] ). Contrary to petitioner's further contention, the ZBA did not intrude upon the authority of the City of Buffalo's Common Council by " ‘destroy[ing] the general scheme’ of the zoning law" ( Matter of Abrams v. City of Buffalo Zoning Bd. of Appeals , 61 A.D.3d 1387, 1387, 877 N.Y.S.2d 550 [4th Dept. 2009], quoting Matter of Clark v. Board of Zoning Appeals of Town of Hempstead , 301 N.Y. 86, 91, 92 N.E.2d 903 [1950], rearg denied 301 N.Y. 681, 95 N.E.2d 44 [1950], cert denied 340 U.S. 933, 71 S.Ct. 498, 95 L.Ed. 673 [1951] ; see Matter of Santora v. Town of Poughkeepsie Zoning Bd. of Appeals , 55 A.D.3d 741, 743, 865 N.Y.S.2d 361 [2d Dept. 2008] ).