Summary
dismissing petition
Summary of this case from Clover/Allen's Creek Neighborhood Ass'n v. M & F, LLCOpinion
March 14, 1997.
Judgment unanimously reversed on the law without costs and petition dismissed.
Present — Pine, J.P., Lawton, Doerr, Boehm and Fallon, JJ.
Respondents, Town of Mendon Zoning Board of Appeals (ZBA) and Town of Mendon Planning Board (Planning Board), and intervenor appeal from a judgment of Supreme Court that annulled the determinations of the municipal respondents to grant site plan approval and a conditional use permit for the construction of a cellular telephone "silo". The court held that there was no basis in the record for a permit for construction of a silo on any of the four sites and that the ZBA abused its discretion in granting a conditional use permit for the construction of a silo at the "Swart" site. We disagree.
It is well settled that a determination of a Zoning Board of Appeals should not be set aside unless illegal, arbitrary or an abuse of discretion ( see, Matter of Fuhst v Foley, 45 NY2d 441, 444-445; Matter of D'Ange lo v Hartman, 187 AD2d 927). "If a decision is rational and is supported by substantial evidence, a reviewing court may not substitute its judgment for that of a zoning board of appeals even if an opposite conclusion might logically be drawn" (Rice, Practice Commentaries, McKinney's Cons Laws of NY, Book 63, Village Law § 7-712-c, at 461; see, Matter of Cowan v Kern, 41 NY2d 591, 598, rearg denied 42 NY2d 910; Matter of Geampa v Walck [appeal No. 2], 222 AD2d 1072). The issue before the court was whether the ultimate determination to grant approval for the construction of a silo at the "Swart site" is rational and supported by substantial evidence. The ZBA concluded that the use of the silo mitigated a significant impact, namely the visual impact of a 150-foot monopole, and that the silo was in keeping with the rural / agricultural nature of the area. Those conclusions are supported by the record and provide ample support for the ZBA's determination. Additionally, the Planning Board's conclusion that "[environmental impacts are * * * equally insignificant for all three sites" is supported by the record. (Appeals from Judgment of Supreme Court, Monroe County, Bergin, J. — CPLR art 78.)