Carrano v. Modelewski

73 A.D.3d 767, 899 N.Y.S.2d 634

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 2010
• Status: Published

Opinion

In a proceeding pursuant to CFLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Huntington dated September 27, 2007, denying the petitioner’s application for a use variance, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Jones, Jr., J), entered April 14, 2009, which, upon a decision of the same court dated May 13, 2008, denied the petition and, in effect, dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

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 and capricious, or an abuse of discretion (see Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Gallo v Rosell, 52 AD3d 514, 515 [2008]). Thus, the determination of a zoning board should be sustained upon judicial review if it is not illegal or arbitrary and capricious, and has a rational basis (see Matter of Sasso v Osgood, 86 NY2d 374, 384 [1995]; Matter of Gallo v Rosell, 52 AD3d at 515).

Here, contrary to the petitioner’s contention, the determination of the Zoning Board of Appeals of the Town of Huntington that she failed to meet her burden of establishing a preexisting nonconforming use of the subject property has a rational basis and was not illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Mohan v Zoning Bd. of Appeals of Town of Huntington, 1 AD3d 364 [2003]; Matter of McQuade v Zoning Bd. of Appeals of Town of Huntington, 248 AD2d 386 [1998]; cf. Matter of Straub v Modelewski, 56 AD3d 481 [2008]). Accordingly, the Supreme Court properly denied the petition and, in effect, dismissed the proceeding. Mastro, J.P., Eng, Belen and Austin, JJ., concur.