Opinion
01-01151
Argued April 9, 2002
May 28, 2002.
In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of Brookhaven, dated March 25, 1998, which, inter alia, denied the petitioner's application for a use variance for the operation of a concrete crusher, the petitioner appeals from so much of a judgment of the Supreme Court, Suffolk County (Pitts, J.), dated January 4, 2001, as confirmed the determination of the Board of Zoning Appeals of the Town of Brookhaven denying the use variance and dismissed the proceeding with respect thereto.
Kenneth Cooperstein, Centerport, N.Y., for appellant.
Annette Eaderesto, Town Attorney, Medford, N.Y. (Barbara M. Wiplush of counsel), for respondents.
FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, LEO F. McGINITY, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
It is well settled that the scope of judicial review in a CPLR article 78 proceeding of a determination by a zoning board is limited to an examination of whether the determination has a rational basis and is supported by substantial evidence (see Matter of Fuhst v. Foley, 45 N.Y.2d 441; Matter of New Venture Realty v. Fennell, 210 A.D.2d 412). The Supreme Court may not weigh the evidence or reject the choice made by the zoning board "where the evidence is conflicting and room for choice exists" (Matter of Stork Rest. v. Boland, 282 N.Y. 256, 267; see Matter of Toys "R" Us v. Silva, 89 N.Y.2d 411, 424).
To qualify for a use variance premised upon unnecessary hardship there must be a showing that (1) the property cannot yield a reasonable return if used for permitted purposes as currently zoned, (2) the hardship results from unique characteristics of the property, and (3) the proposed use will not alter the character of the neighborhood, and (4) the alleged hardship has not been self-created (Town Law § 267-b.2[b]; see Matter of Village Bd. of Vil. of Fayetteville v. Jarrold, 53 N.Y.2d 254; Matter of Otto v. Steinhilber, 282 N.Y. 71; Matter of Elwood Props. v. Bohrer, 216 A.D.2d 562).
Contrary to the petitioner's contention, substantial evidence exists to support the determination of the Board of Zoning Appeals of the Town of Brookhaven (hereinafter the Board) that the nonconforming use would adversely impact the surrounding neighborhood and was a self-created hardship, and that determination has a rational basis. Thus, the Board properly denied the petitioner's request for a use variance.
The petitioner's remaining contention is without merit.
SANTUCCI, J.P., ALTMAN, McGINITY and ADAMS, JJ., concur.