Giava v. Zoning Board of Appeals

Appellate Division of the Supreme Court of New York

Giava v. Zoning Board of Appeals

188 A.D.2d 466, 592 N.Y.S.2d 596, 1992 N.Y. App. Div. LEXIS 13576

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 7, 1992

StatusPublished

Cited by1 cases

This text of 188 A.D.2d 466 (Giava v. Zoning Board of Appeals) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Giava v. Zoning Board of Appeals, 188 A.D.2d 466, 592 N.Y.S.2d 596, 1992 N.Y. App. Div. LEXIS 13576 (N.Y. Ct. App. 1992).

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Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Brookhaven, dated January 11, 1989, which granted the intervenor’s application for a variance, the [467]*467intervenor appeals from a judgment of the Supreme Court, Suffolk County (Lama, J.), entered November 26, 1990, which granted the petition and annulled the determination.

Ordered that the judgment is affirmed, with costs to the petitioner-respondent.

It is well established that local zoning boards have broad discretion in considering applications for variances, and that judicial review is limited to determining whether the action taken by the board is illegal, arbitrary, or an abuse of discretion (see, Matter of Fuhst v Foley, 45 NY2d 441; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309). The zoning board’s determination will ordinarily be sustained if the determination has a rational basis (see, Matter of Fuhst v Foley, supra, at 444).

We agree with the Supreme Court’s conclusion that if the application is viewed as one for an area variance, as the Zoning Board of Appeals viewed it, the intervenor failed to adequately demonstrate the requisite practical difficulties warranting such a variance. Indeed, the intervenor did not demonstrate significant economic injury, nor did it establish that the other factors relevant to a variance application would favor the granting of the application (see generally, Matter of Cowan v Kern, 41 NY2d 591; Matter of Townwide Props. v Zoning Bd. of Appeals, 143 AD2d 757).

Moreover, the Supreme Court correctly determined that the intervenor clearly failed to meet the greater burden of demonstrating unnecessary hardship, which would be applicable if the application in this matter were considered one for a use variance (see generally, Matter of Village Bd. v Jarrold, 53 NY2d 254). Bracken, J. P., Sullivan, Copertino and Santucci, JJ., concur.

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In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Brookhaven, dated January 11, 1989, which granted the intervenor’s application for a variance, the [467]*467intervenor appeals from a judgment of the Supreme Court, Suffolk County (Lama, J.), entered November 26, 1990, which granted the petition and annulled the determination.

Ordered that the judgment is affirmed, with costs to the petitioner-respondent.

It is well established that local zoning boards have broad discretion in considering applications for variances, and that judicial review is limited to determining whether the action taken by the board is illegal, arbitrary, or an abuse of discretion (see, Matter of Fuhst v Foley, 45 NY2d 441; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309). The zoning board’s determination will ordinarily be sustained if the determination has a rational basis (see, Matter of Fuhst v Foley, supra, at 444).

We agree with the Supreme Court’s conclusion that if the application is viewed as one for an area variance, as the Zoning Board of Appeals viewed it, the intervenor failed to adequately demonstrate the requisite practical difficulties warranting such a variance. Indeed, the intervenor did not demonstrate significant economic injury, nor did it establish that the other factors relevant to a variance application would favor the granting of the application (see generally, Matter of Cowan v Kern, 41 NY2d 591; Matter of Townwide Props. v Zoning Bd. of Appeals, 143 AD2d 757).

Moreover, the Supreme Court correctly determined that the intervenor clearly failed to meet the greater burden of demonstrating unnecessary hardship, which would be applicable if the application in this matter were considered one for a use variance (see generally, Matter of Village Bd. v Jarrold, 53 NY2d 254). Bracken, J. P., Sullivan, Copertino and Santucci, JJ., concur.

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Bluebook (online)

188 A.D.2d 466, 592 N.Y.S.2d 596, 1992 N.Y. App. Div. LEXIS 13576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giava-v-zoning-board-of-appeals-nyappdiv-1992.

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