Opinion
2015-08-19
In the Matter of Michael T. TOWERS, petitioner, v. David P. WEISS, etc., et al., respondents.
William A. DiConza, Oyster Bay, N.Y., for petitioner. Sahn Ward Coschignano & Baker, PLLC, Uniondale, N.Y. (Thomas McKevitt of counsel), for respondents Andrew J. Mihalick, Kathleen M. Mihalick, and Kristin Elizabeth Kelsch, and Joseph J. Ra, Town Attorney, Hempstead, N.Y. (Frederico A. Amorini of counsel), for respondents David P. Weiss, Chairman, Gerald Wright, Katuria D'Amato, John Rangano, Frank Mistero, Joseph Pellegrini, and Kimberly Perry, constituting the Town of Hempstead Board of Appeals (one brief filed).
William A. DiConza, Oyster Bay, N.Y., for petitioner. Sahn Ward Coschignano & Baker, PLLC, Uniondale, N.Y. (Thomas McKevitt of counsel), for respondents Andrew J. Mihalick, Kathleen M. Mihalick, and Kristin Elizabeth Kelsch, and Joseph J. Ra, Town Attorney, Hempstead, N.Y. (Frederico A. Amorini of counsel), for respondents David P. Weiss, Chairman, Gerald Wright, Katuria D'Amato, John Rangano, Frank Mistero, Joseph Pellegrini, and Kimberly Perry, constituting the Town of Hempstead Board of Appeals (one brief filed).
Proceeding pursuant to CPLR article 78 to review a determination of the Town of Hempstead Board of Appeals dated February 27, 2013, which, after a hearing, granted the applications of Andrew J. Mihalick, Kathleen M. Mihalick, Robert Douglas, and Kristin Elizabeth Kelsch for certain area variances.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
The Supreme Court should have disposed of this proceeding on the merits instead of transferring it to this Court pursuant to CPLR 7804(g) ( see matter of matejko v. board of zoning appeals of town of brookhavEN, 77 A.D.3d 949, 949, 910 N.Y.S.2d 123; Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768, 769, 809 N.Y.S.2d 98). Nevertheless, we will decide the case on the merits in the interest of judicial economy ( see Matter of Halperin v. City of New Rochelle, 24 A.D.3d at 772–773, 809 N.Y.S.2d 98; Matter of Country Glen Assoc. v. Newburger, 305 A.D.2d 594, 595, 759 N.Y.S.2d 385).
The determination of the Town of Hempstead Board of Appeals (hereinafter the Board) to grant applications for certain area variances was rational. “Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion” ( Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 308, 746 N.Y.S.2d 667, 774 N.E.2d 732; see Matter of Matejko v. Board of Zoning Appeals of Town of Brookhaven, 77 A.D.3d 949, 949, 910 N.Y.S.2d 123). “[A] zoning board's determination should be sustained on judicial review if it has a rational basis and is supported by evidence in the record” ( Matter of Traendly v. Zoning Bd. of Appeals of Town of Southold, 127 A.D.3d 1218, 1219, 7 N.Y.S.3d 544). The transcript of the public hearing conducted by the Board on January 30, 2013, and the Board's findings of fact and conclusions of law dated April 24, 2013, show that the Board properly performed the required balancing test ( see Town Law § 267–b[3][b] ). The Board's determination to grant the subject area variances had a rational basis and was supported by evidence in the record ( see Matter of Ifrah v. Utschig, 98 N.Y.2d at 308, 746 N.Y.S.2d 667, 774 N.E.2d 732; Matter of Matejko v. Board of Zoning Appeals of Town of Brookhaven, 77 A.D.3d at 949, 910 N.Y.S.2d 123) and, thus, was neither illegal, arbitrary, nor an abuse of discretion. RIVERA, J.P., DICKERSON, MILLER and DUFFY, JJ., concur.