Opinion
CA 02-02048
February 7, 2003.
Appeal from a judgment of Supreme Court, Onondaga County (Centra, J.), dated December 14, 2001, which denied the CPLR article 78 petition.
DIRK J. OUDEMOOL, SYRACUSE, For Petitioners-appellants.
SMITH, SOVIK, KENDRICK SUGNET, P.C., SYRACUSE (MARY KENDRICK-GAFFNEY OF COUNSEL), For Respondent-respondent.
PRESENT: GREEN, J.P., PINE, HURLBUTT, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Petitioners, the owners of a lot fronting on Skaneateles Lake, appeal from a judgment denying their petition to vacate the determination denying their amended application for area variances that would have allowed them to construct a residence on their lot. In considering an application for an area variance, a local zoning board is required to weigh the benefit to the applicant of granting the variance against any detriment to the health, safety and welfare of the neighborhood or community affected thereby (see Town Law § 267-b [b]; Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 307; Matter of Sasso v. Osgood, 86 N.Y.2d 374, 382), taking into account the five factors listed in Town Law § 267-b (3)(b) (see Ifrah, 98 N.Y.2d at 307-308). A zoning board has "broad discretion" in determining whether to grant the requested area variance (id. at 308), and judicial review is limited to deciding whether the determination of the zoning board was illegal, arbitrary or an abuse of discretion (see id., citing Matter of Fuhst v. Foley, 45 N.Y.2d 441, 444; see also Sasso, 86 N.Y.2d at 386). A reviewing court may not substitute its judgment for that of the zoning board, even if there is substantial evidence supporting a contrary determination (see Matter of Retail Prop. Trust v. Bd. of Zoning Appeals of Town of Hempstead, 98 N.Y.2d 190, 196; Matter of Cowan v. Kern, 41 N.Y.2d 591, 599, rearg denied 42 N.Y.2d 910; Conley v. Town of Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 309, 316).
We agree with Supreme Court that respondent made its determination after considering the appropriate factors and properly weighing the benefit to petitioners against the detriment to the health, safety and welfare of the neighborhood or community if the variances were granted (see Town Law § 267-b [b]; see generally Ifrah, 98 N.Y.2d at 309; Matter of J.H., Jr., E.T., Sr. Wurz Realty Partnership v. Zoning Bd. of Appeals of Vil. of N.Y. Mills, 249 A.D.2d 984, 985, lv denied 92 N.Y.2d 813). We further conclude that the determination of respondent is rationally based on the record and not illegal (see Ifrah, 98 N.Y.2d at 308-309; Matter of Orchard Michael, Inc. v. Falcon, 65 N.Y.2d 1007, 1009; see also J.H., Jr., E.T., Sr. Wurz Realty Partnership, 249 A.D.2d at 985).