Opinion
No. 157.
Argued October 15, 2009.
Decided November 19, 2009.
APPEAL from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered September 30, 2008. The Appellate Division, with two Justices dissenting, (1) reversed, on the law, a judgment of the Supreme Court, Richmond County (Thomas P. Aliotta, J.; op 13 Misc 3d 1214[A], 2006 NY Slip Op 51819[U]), entered in a proceeding pursuant to CPLR article 78, which had granted a petition to annul a determination of respondent Board of Standards and Appeals of the City of New York which, after a hearing, granted an application by respondent GAC Catering, Inc. for a use variance, (2) confirmed the determination, (3) denied the petition, and (4) dismissed the proceeding on the merits.
Matter of Vomero v City of New York, 54 AD3d 1045, reversed
Samuel L. Scollar, Staten Island, and Marc E. Scollar, for appellant.
Michael A. Cardozo, Corporation Counsel, New York City ( Tahirih M. Sadrieh and Edward F.X. Hart of counsel), for City of New York, respondent.
Passarello LaRosa, Staten Island ( John Z. Marangos and Richard A. LaRosa of counsel), for GAC Catering, Inc., respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.
A local zoning board has broad discretion when reviewing an application for a zoning variance, but its determination may be set aside if the record reveals that "the board acted illegally or arbitrarily, or abused its discretion" ( Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613). In this case, the zoning board's decision to grant a use variance for the construction of a commercial structure in a residentially-zoned area was an abuse of discretion. The physical conditions of the parcel relied on by the board did not establish that the property's characteristics were "unique" as defined by New York City Zoning Resolution § 72-21 (a). Proof of uniqueness must be "peculiar to and inherent in the particular zoning lot" (NY City Zoning Resolution § 72-21 [a]), rather than "common to the whole neighborhood" ( Matter of Clark v Board of Zoning Appeals of Town of Hempstead, 301 NY 86, 91 [1950], cert denied 340 US 933; see also Dauernheim, Inc. v Town Bd. of Town of Hempstead, 33 NY2d 468, 471-472). The fact that this residentially zoned corner property is situated on a major thoroughfare in a predominantly commercial area does not suffice to support a finding of uniqueness since other nearby residential parcels share similar conditions.
Order reversed, etc.