Opinion
March 29, 2000.
Appeal from Judgment of Supreme Court, Erie County, Doyle, J., for Mintz, J., pursuant to CPLR 9002 — CPLR art 78.
PRESENT: GREEN, J. P., HAYES, HURLBUTT AND LAWTON, JJ.
Judgment unanimously affirmed without costs.
Memorandum:
Petitioners appeal from a judgment that confirmed the determination of respondent Town of Amherst Zoning Board of Appeals (ZBA) granting a use variance to permit use of an 11.1± acre parcel of land located in a suburban-agricultural district as a 100-unit senior citizen housing complex. We reject the contention of petitioners that the granting of the use variance did not comport with the requirements of Town Law § 267-b and that the ZBA failed to make adequate findings. Where, as here, the determination of the ZBA has a rational basis and is supported by substantial evidence, it is entitled to great deference and must be sustained ( see, Matter of Farrell v. Johnson , 266 A.D.2d 873 [decided Nov. 12, 1999]; Matter of Village of Honeoye Falls v. Town of Mendon Zoning Bd. of Appeals , 237 A.D.2d 929 ). "[T]he * * * record disclose[s] concrete proof that the landowner could not realize a reasonable return without the [use variance]" ( Matter of Village Bd. v. Jarrold , 53 N.Y.2d 254, 259 ; see, Town Law § 267-b [2] [b] [1]; Matter of Geampa v. Walck [appeal No. 2], 222 A.D.2d 1072; cf., Matter of Conte v. Town of Norfolk Zoning Bd. of Appeals , 261 A.D.2d 734, 736). The record further establishes that the hardship is due to unique characteristics of the property ( see, Town Law § 267-b [2] [b] [2]), including, inter alia, two separate areas of wetlands ( cf., Matter of Amco Dev. v. Zoning Bd. of Appeals , 185 A.D.2d 637, 638 ) and its location at a major intersection ( see, Matter of Rothenberg v. Board of Zoning Appeals , 232 A.D.2d 568, 570 ); that the proposed use will not alter the essential character of the locality ( see, Town Law § 267-b [2] [b] [3]; Matter of Douglaston Civic Assn. v. Klein , 51 N.Y.2d 963, 965 ); and that the hardship was not self-created ( see, Town Law § 267-b [2] [b] [4]; cf., Matter of Ferruggia v. Zoning Bd. of Appeals , 233 A.D.2d 505, 507 ). We further reject the contention of petitioners that the ZBA did not grant the minimum variance necessary to address the hardship ( see, Town Law § 267-b [2] [c]; cf., Matter of Foster v . Saylor , 85 A.D.2d 876, 878 ).
Petitioners also contend that the ZBA's determination violates the requirements of the State Environmental Quality Review Act (ECL art 8; see, 6 N.Y.C.R.R. part 617). We disagree. The ZBA properly identified the relevant areas of environmental concern, took the requisite hard look at those areas of concern and made a reasoned elaboration of the basis for its findings ( see, Akpan v. Koch , 75 N.Y.2d 561, 570 ; Matter of Jackson v. New York State Urban Dev. Corp ., 67 N.Y.2d 400, 417 ). Although the ZBA should not have approved the use variance until after issuing a negative declaration, the subsequent filing of the negative declaration and the re-vote affirming the granting of the use variance based on the evidence presented before and during the public hearing effectively cured the procedural error ( see, Matter of Golden Triangle Assocs. v. Town Bd ., 185 A.D.2d 617, 617-618 ).