Opinion
2019–05704, (Index 5217/18)
04-13-2022
In the Matter of the ESTATE OF Linda H. STELLING, appellant, v. Robert GAUDIOSO, etc., et al., respondents.
Law Office of Vincent J. Trimarco, LLP, Smithtown, NY (Clare B. Connaughton of counsel), for appellant. Campolo, Middleton & McCormick, LLP, Ronkonkoma, NY (Scott D. Middleton and Richard A. DeMaio of counsel), for respondents.
Law Office of Vincent J. Trimarco, LLP, Smithtown, NY (Clare B. Connaughton of counsel), for appellant.
Campolo, Middleton & McCormick, LLP, Ronkonkoma, NY (Scott D. Middleton and Richard A. DeMaio of counsel), for respondents.
ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ.
DECISION & ORDER In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Appeals of the Incorporated Village of Lake Grove dated September 5, 2018, which, after a hearing, denied the petitioner's applications for area variances, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Vincent J. Martorana, J.), dated April 12, 2019. The judgment denied the petition and dismissed the proceeding.
ORDERED that the judgment is affirmed, with costs.
The petitioner is the owner of real property in the Village of Lake Grove consisting of a 16,000–square–foot lot, improved by a single-family residence. The property is located in a residential zoning district requiring a minimum lot size of 20,000 square feet. The petitioner submitted a minor subdivision application to the Lake Grove Village Planning Board (hereinafter the Planning Board) seeking to subdivide the property into two lots. The first lot would total 6,000 square feet and would include the existing single-family residence. The second lot would consist of the remaining 10,000 square feet, on which the petitioner proposed to build a new single-family residence. The Planning Board instructed the petitioner to apply to the Zoning Board of Appeals of the Incorporated Village of Lake Grove (hereinafter the ZBA) for the necessary area variances. The petitioner then submitted two variance applications to the ZBA. The first application requested, inter alia, a variance from the 20,000–square–foot lot area requirement down to 6,000 square feet. The second application requested, among other things, a variance from the 20,000–square–foot lot area requirement down to 10,000 square feet. After a hearing, where the petitioner indicated its intention to sell both houses if the variances were granted, the ZBA denied the petitioner's applications. The petitioner then commenced this proceeding pursuant to CPLR article 78 to annul the ZBA's determination denying the requested area variances, asserting, inter alia, that it was arbitrary and capricious. In a judgment dated April 12, 2019, the Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.
"In determining whether to grant an area variance, a zoning board of appeals is required to engage in a balancing test weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community" ( Matter of deBordenave v. Village of Tuxedo Park Bd. of Zoning Appeals, 168 A.D.3d 838, 839, 92 N.Y.S.3d 132 ; see also Village Law § 7–712–b[3][b] ). In making that determination, 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 proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created" ( Village Law § 7–712–b[3][b] ). "Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion" ( Matter of Stengel v. Town of Poughkeepsie Zoning Bd. of Appeals, 167 A.D.3d 754, 755, 90 N.Y.S.3d 205, [internal quotation marks omitted]). A determination is rational, and not arbitrary and capricious, if it has some objective factual basis (see Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768, 772, 809 N.Y.S.2d 98 ). Here, the ZBA engaged in the required balancing test and considered the relevant statutory factors (see Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 N.Y.3d 608, 781 N.Y.S.2d 234, 814 N.E.2d 404 ). Contrary to the petitioner's contentions, the denial of its applications, on the whole, had a rational basis and was not arbitrary or capricious (see Matter of Sasso v. Osgood, 86 N.Y.2d 374, 385, 633 N.Y.S.2d 259, 657 N.E.2d 254 ; Matter of Harris v. Zoning Bd. of Appeals of Town of Carmel, 137 A.D.3d 1130, 1131–1132, 27 N.Y.S.3d 660 ). The evidence before the ZBA supported its findings that the proposed variances were substantial and that the benefit sought by the petitioner could have been achieved by a feasible alternative. The requested variances from the lot area, if granted, would have deviated 50% and 70%, respectively, from the requirements of the zoning law (see Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 746 N.Y.S.2d 667, 774 N.E.2d 732 ; Matter of Bull Run Props., LLC v. Town of Cornwall Zoning Bd. of Appeals, 50 A.D.3d 683, 855 N.Y.S.2d 585 ; Matter of Cortland LLC v. Zoning Bd. of Appeals of Vil. of Roslyn Estates, 21 A.D.3d 371, 800 N.Y.S.2d 35 ; Matter of Stewart v. Ferris, 236 A.D.2d 767, 653 N.Y.S.2d 973 ; Matter of McGlasson Realty v. Town of Patterson Bd. of Appeals, 234 A.D.2d 462, 651 N.Y.S.2d 131 ). Moreover, feasible alternative uses of the property are available to the petitioner, including construction of one house on the property instead of two (see Matter of Harn Food, LLC v. DeChance, 159 A.D.3d 819, 72 N.Y.S.3d 538 ).
Accordingly, the Supreme Court properly concluded that the ZBA's determination had a rational basis in the facts before it and was not arbitrary or capricious.
IANNACCI, J.P., RIVERA, MILLER and MALTESE, JJ., concur.