Opinion
No. 184 SSM 20.
Decided August 27, 2009.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered December 2, 2008. The Appellate Division (1) reversed, on the law, a judgment of the Supreme Court, Nassau County (Thomas Feinman, J.; op 2007 NY Slip Op 34429[U]), entered in a proceeding pursuant to CPLR article 78, which had denied a petition to review a determination of the Board of Zoning Appeals of the Town of North Hempstead denying petitioner's application for area variances, (2) granted the petition, (3) annulled the determination of the Board of Zoning Appeals, and (4) remitted the matter to the Board of Zoning Appeals for the issuance of the requested variances. Matter of Gebbie v Mammina, 57 AD3d 544, reversed.
Richard S. Finkel, Town Attorney, Manhasset ( Christopher G. Senior and Simone Marie Freeman of counsel), for appellants.
William A. DiConza, Oyster Bay, for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.
In view of the broad discretion afforded zoning boards considering applications for area variances ( see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 612-613), the denial of petitioner's application for area variances to subdivide his lot to create two nonconforming lots had a rational basis and was not arbitrary and capricious. The Board of Zoning Appeals rationally balanced and weighed the requisite statutory factors, and the Appellate Division erroneously substituted its judgment for that of the agency ( see Town Law § 267-b [b]).
In memorandum.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.