Opinion
134 CA 14-00832
03-20-2015
In the Matter of PEOPLE, INC. and S Spoth, LLC, Petitioners–Respondents, v. CITY OF TONAWANDA ZONING BOARD OF APPEALS, Respondent–Appellant.
Francis C. Amendola, Buffalo, for Respondent–Appellant. Hopkins & Sorgi, PLLC, Williamsville (Sean W. Hopkins of Counsel), for Petitioners–Respondents.
Francis C. Amendola, Buffalo, for Respondent–Appellant.
Hopkins & Sorgi, PLLC, Williamsville (Sean W. Hopkins of Counsel), for Petitioners–Respondents.
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:Respondent appeals from a judgment that, inter alia, granted the CPLR article 78 petition and aned the determination of respondent denying petitioners' application for two area variances. We agree with respondent that Supreme Court erred in granting the petition, and we therefore reverse.
It is well settled that the determination whether to grant or deny an application for an area variance is committed to the broad discretion of the applicable local zoning board (see Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 308, 746 N.Y.S.2d 667, 774 N.E.2d 732 ; Matter of Shokrian v. Zoning Bd. of Appeals of City of Long Beach, 32 A.D.3d 961, 961, 820 N.Y.S.2d 811 ). Consequently, when reviewing the denial of an application for an area variance, “[j]udicial review [of such a determination] is ... limited to the issue ‘whether the action taken by the [board] was illegal, arbitrary, or an abuse of discretion’ ... [, and the b]oard's determination should therefore be sustained so long as it ‘has a rational basis and is supported by substantial evidence’ ” (Matter of Dietrich v. Planning Bd. of Town of W. Seneca, 118 A.D.3d 1419, 1420, 988 N.Y.S.2d 760 ; see Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 N.Y.3d 608, 613, 781 N.Y.S.2d 234, 814 N.E.2d 404 ). A reviewing court may not substitute its judgment for that of a local zoning board (see Matter of Goldberg v. Zoning Bd. of Appeals of City of Long Beach, 79 A.D.3d 874, 877, 912 N.Y.S.2d 668 ), “even if there is substantial evidence supporting a contrary determination” (Matter of Conway v. Town of Irondequoit Zoning Bd. of Appeals, 38 A.D.3d 1279, 1280, 831 N.Y.S.2d 818 ).
Here, the record establishes that respondent reviewed the appropriate statutory factors in making its determination (see General City Law § 81–b [4 ] [b] ), and concluded that the application should be denied because, inter alia, the variances would cause an undesirable change to the character of the neighborhood, the variances are substantial, and petitioners' hardship is self-created (see § 81–b[4][b][i], [iii], [v] ). Specifically, there is substantial evidence in the record supporting respondent's conclusion that granting the variances would cause increased population density from the presence of an apartment building in a neighborhood comprised of single-family homes (see Matter of Bivona v. Town of Plattekill Zoning Bd. of Appeals, 268 A.D.2d 877, 879–880, 701 N.Y.S.2d 734 ), that the variances necessary to accommodate an apartment building would be substantial (see Pecoraro, 2 N.Y.3d at 614, 781 N.Y.S.2d 234, 814 N.E.2d 404 ), and that the petitioners' difficulty was self-created because they were aware of the property's zoning classification when they purchased the property (see Ifrah, 98 N.Y.2d at 309, 746 N.Y.S.2d 667, 774 N.E.2d 732 ; cf. Matter of Swan v. Depew, 167 A.D.2d 835, 836, 561 N.Y.S.2d 940 ). Inasmuch as respondent “rendered its determination after considering the appropriate factors and properly weighing the benefit to petitioner[s] against the detriment to the health, safety and welfare of the neighborhood or community if the variances were granted” (Matter of DeGroote v. Town of Greece Bd. of Zoning Appeals, 35 A.D.3d 1177, 1178, 825 N.Y.S.2d 878 ; see Matter of Concerned Citizens of Perinton v. Town of Perinton, 261 A.D.2d 880, 880, 689 N.Y.S.2d 812, appeal dismissed 93 N.Y.2d 1040, 697 N.Y.S.2d 567, 719 N.E.2d 928, cert. denied 529 U.S. 1111, 120 S.Ct. 1965, 146 L.Ed.2d 796 ), we agree with respondent that the court erred in granting the petition.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the petition is dismissed.