Opinion
November 2, 1998
Appeal from the Supreme Court, Dutchess County (Bernhard, J.).
Ordered that the judgment is reversed, on the law, with costs, the determination is confirmed, and the proceeding is dismissed on the merits.
In determining the merits of an area variance application, a Zoning Board of Appeals is required to 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, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance" (Town Law § 267-b Town. [3] [b]). In applying those factors here, we find that the determination of the Zoning Board of Appeals of the Town of Hyde Park was not arbitrary, capricious, illegal, or an abuse of discretion (see CPLR 7803). Although the petitioner is unable to develop the property without the requested variances, the record reveals "'that strict application of the zoning ordinance was necessary to promote and protect the public health, safety and welfare and that the need to promote the public good outweighed any injury to the petitioner'" (Matter of Licari v. Scheyer, 193 A.D.2d 604, 606, quoting Matter of Sakrel, Ltd. v. Roth, 182 A.D.2d 763, 764).
Moreover, the petitioner failed to prove that the application to his property of the local zoning ordinance under review constituted an unconstitutional taking of his property without compensation (see, Matter of Khan v. Zoning Bd. of Appeals, 87 N.Y.2d 344, 352; Matter of Kransteuber v. Scheyer, 176 A.D.2d 724, 726-727, affd 80 N.Y.2d 783).
Rosenblatt, J. P., Ritter, Copertino and McGinity, JJ., concur.