In re Rosof v. Bailin

8 Citing cases

  1. Matter of Berman v. Hart

    256 A.D.2d 333 (N.Y. App. Div. 1998)   Cited 2 times

    Ordered that the judgment is affirmed, with one bill of costs. In determining whether to grant an application for an area variance, Village Law § 7-712-b (3) (b) requires a zoning board of appeals to engage in a balancing test, weighing "the benefit to the applicant if the variance is granted" against "the detriment to the health, safety and welfare of the neighborhood or community by such grant" ( see, Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384; Matter of Rosof v. Bailin, 237 A.D.2d 612; Matter of Johnson v. Village of Westhampton Beach, 244 A.D.2d 335). Applying this test, we find that the determination of the Board of Zoning Appeals of the Incorporated Village of Lawrence (hereinafter Board of Zoning Appeals) to uphold the grant of the area variance was supported by substantial evidence on the record when read as a whole ( see, Matter of Johnson v. Village of Westhampton Beach, supra; Matter of Rosof v. Bailin, 237 A.D.2d 612, supra, citing Matter of Sasso v. Osgood, supra). Although the petitioners argue that the Board of Zoning Appeals erred in granting Linda Calandrillo's application for a use variance, the need for such a variance became academic by Calandrillo's conformance with the applicable provision of the Village Code, and no use variance was granted.

  2. In the Matter of O'Connell v. Knowlton

    21 A.D.3d 1105 (N.Y. App. Div. 2005)   Cited 4 times

    g of the area variance, (2) the benefit sought by the applicant can be achieved by some other method, other than an area variance, feasible for the applicant to pursue, (3) the required area variance is substantial, (4) the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district, and (5) the alleged difficulty was self-created ( see Village Law § 7-712-b; Matter of Stone Landing Corp. v. Board of Appeals of Vil. of Amityville, supra; Matter of Scimone v. Humenik, supra). Here the record reveals that the ZBA weighed the relevant statutory factors and that its determination, including the finding that the variances would not result in an undesirable change in the neighborhood or detriment to nearby properties, was rational, and not arbitrary or capricious, and was supported by substantial evidence ( see Matter of Khan v. Zoning Bd. of Appeals of Vil. of Irvington, 87 NY2d 344; Matter of Sasso v. Osgood, supra; Matter of Rosof v. Bailin, 237 AD2d 612). Accordingly, under the facts and circumstances of this case, the Supreme Court erred in granting the petition and annulling the ZBA's determination.

  3. Mobil Oil Corp. v. Village of Mamaroneck

    293 A.D.2d 679 (N.Y. App. Div. 2002)   Cited 17 times

    A self-imposed hardship is fatal to an application for a use variance, but it is a relevant, although nondeterminative, factor in considering an area variance application (see Matter of Clark v. Board of Zoning Appeals, 301 N.Y. 86, 89, cert denied 340 U.S. 933; Matter of Courtney v. City of Albany Bd. of Zoning Appeals, 177 A.D.2d 820; Matter of Long Is. Leasing Corp. v. Casey, 138 A.D.2d 596, 597; Matter of Carriage Works Enter. v. Siegel, 118 A.D.2d 568, 569; 2 Salkin, New York Zoning Law and Practice §§ 29:30, 29:39 [4th ed 2001]; for area variances see DeSena v. Bd. of Zoning Appeals of Inc. Vil. of Hempstead, 45 N.Y.2d 105, 108; cf. Matter of Sasso v. Osgood, 86 N.Y.2d 374, 385; Rice, Practice Commentaries, Village Law § 7-712-b, McKinney's Cons Laws of NY, Book 63, at 422 [1996]). In determining whether to grant an area variance, a zoning board must engage in a balancing test of the statutory factors (see Village Law § 7-712-b[3][b]; Matter of Sasso v. Osgood, supra, at 384; Matter of Rosof v. Bailin, 237 A.D.2d 612). The Board of Appeals not only erred in its treatment of the application as one for a use variance but also articulated an irrational reason for branding the petitioner's difficulty as self-created because, when it purchased the property, it knew of the two previous denials of variances for canopies for this property.

  4. In re Dreikausen v. Zoning Board of Appeals

    287 A.D.2d 453 (N.Y. App. Div. 2001)   Cited 7 times

    It is well settled that local zoning boards have broad discretion in considering variance applications, and judicial review is limited to ascertaining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion ( see, Matter of Fuhst v. Foley, 45 N.Y.2d 441, 444; Matter of Cowan v. Kern, 41 N.Y.2d 591, 599). "Absent arbitrariness, it is for locally selected and locally responsible officials to determine where the public interest in zoning lies" ( Matter of Cowan v. Kern, supra, at 599; see also, Matter of Rosof v. Bailin, 237 A.D.2d 612). A use variance may be granted upon a showing of unnecessary hardship ( see, General City Law § 81).

  5. In re Miller v. Zoning Board of Appeals

    276 A.D.2d 633 (N.Y. App. Div. 2000)   Cited 8 times

    ORDERED that the judgment is modified, on the law, by deleting the second decretal paragraph thereof directing the issuance of the requested variances; as so modified, the judgment is affirmed, without costs and disbursements, and the matter is remitted to the Zoning Board of Appeals of the Town of East Hampton for further proceedings in accordance herewith. It is well settled that local zoning boards have broad discretion in considering variance applications and that judicial review is limited to ascertaining whether the action taken by the board is illegal, arbitrary, or an abuse of discretion (see, Matter of Fuhst v. Foley, 45 N.Y.2d 441, 444-445; Matter of Perla v. Heller, 251 A.D.2d 419; Matter of Rosof v. Bailin, 237 A.D.2d 612). A zoning board's determination "must be sustained if it has a rational basis and is supported by substantial evidence" (Matter of Toys "R" Us v. Silva, 89 N.Y.2d 411, 419). In this case, however, the determination of the Zoning Board of Appeals of the Town of East Hampton (hereinafter the ZBA) does not reflect that it considered the five statutory factors set forth in Town Law § 267-b(3)(b).

  6. In re Chadwick Gardens v. City of Newburgh

    273 A.D.2d 232 (N.Y. App. Div. 2000)   Cited 1 times

    We affirm. In determining whether to grant an application for an area variance, General City Law § 81-b(4) requires zoning boards to "take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood" (Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384; see, Matter of Rosof v. Bailin, 237 A.D.2d 612). Applying this test, the ZBA determination had a rational basis and was supported by substantial evidence on the record when read as a whole (see, Matter of Berman v. Hart, 256 A.D.2d 333, 334; Matter of Johnson v. Village of Westhampton Beach, 244 A.D.2d 335, 336; Matter of Rosof v. Bailin, supra, citing Matter of Sasso v. Osgood, supra, at 384). Furthermore, contrary to the appellant's contention, a negative declaration under Environmental Conservation Law article 8 (SEQRA) with respect to a proposed development is not dispositive of the issue of that development's impact on a neighborhood and the ZBA may deny an area variance on other grounds (see, e.g., General City Law § 81-b; see also, Matter of Wal-Mart Stores v. Town of North Elba, 238 A.D.2d 93, 97).

  7. Matter of Perla v. Heller

    251 A.D.2d 419 (N.Y. App. Div. 1998)   Cited 6 times

    The appellant, who owns the property next to the boathouse, commenced the instant CPLR article 78 proceeding to annul the ZBA's determination. It is well settled that local zoning boards have broad discretion in considering variance applications, and judicial review is limited to ascertaining whether the action taken by the board is illegal, arbitrary, or an abuse of discretion ( see, Matter of Fuhst v. Foley, 45 N.Y.2d 441, 444-445; Matter of Rosof v. Bailin, 237 A.D.2d 612; Matter of Headquarters Auto Supply v. Silva, 217 A.D.2d 626, 627; Matter of Kattke v. Incorporated Vil. of Freeport, 200 A.D.2d 746, 747). Moreover, "[w]hen reviewing the determinations of a Zoning Board, courts consider `substantial evidence' only to determine whether the record contains sufficient evidence to support the rationality of the Board's determination" ( Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384, n 2).

  8. In re Nakhla v. Planning Bd. of Mount Pleasant

    2005 N.Y. Slip Op. 51971 (N.Y. Sup. Ct. 2005)

    It simply cannot be gainsaid that local zoning boards have substantial discretion in considering applications for such things as permits and variances. Judicial review of a zoning board determination is limited to deciding whether the action taken by the zoning board is illegal, arbitrary, or an abuse of discretion ( Matter of Fuhst v. Foley, 45 NY2d 441; Conley v. Town of Brookhaven Zoning Bd. Of Appeals, 40 NY2d 309; see Matter of Rosof v. Bailin, 237 AD2d 612; Matter of Sycamore Run, Inc. v. Foss, 237 AD2d 929). The determination of the zoning board will ordinarily be sustained if the determination has a rational basis and if it is supported by substantial evidence (see Matter of Fuhst v. Foley, supra at 444; Matter of Papanicolaou v. Zoning Board of Appeals, Village of Pleasantville, 237 AD2d 445; Matter of Bergen v. Zoning Board of Appeals of Putnam Valley, 237 AD2d 587, app. dismissed 90 NY2d 828, lv. denied 91 NY2d 806; Matter of McGlasson Realty Inc. v. Town of Patterson, 234 AD2d 462).