Stumpo v. Town of Wheatfield

8 A.D.3d 1101, 778 N.Y.S.2d 359, 2004 NY Slip Op 5064, 2004 N.Y. App. Div. LEXIS 8327

Opinion

Appeal from a judgment (denominated order) of the Supreme Court, Niagara County (Amy J. Fricano, J.), entered December 26, 2002 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition to annul respondents’ determination denying petitioners’ application for an area variance.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioners commenced this CPLR article 78 proceeding seeking to annul the determination of respondent Town of Wheatfield Zoning Board of Appeals (ZBA) denying their application for an area variance. Petitioners sought the variance for the construction of a roadway with a 47-foot right-of-way to enable them to develop a four-lot residential subdivision. Supreme Court properly dismissed the petition. The ZBA “has ‘broad discretion’ in determining whether to grant the requested area variance . . ., and judicial review is limited to deciding whether the determination of the [ZBA] was illegal, arbitrary or an abuse of discretion ... A reviewing court may not substitute its judgment for that of the [ZBA], even if there is substantial evidence supporting a contrary determination” (Matter of Homeyer v Town of Skaneateles Zoning Bd. of Appeals, 302 AD2d 941, 941-942 [2003]). Here, the record establishes that the ZBA made its determination after properly weighing the five factors set forth in Town Law § 267-b (3) (b), “tak[ing] into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant” {id.; see Matter of Sasso v Osgood, 86 NY2d 374, 384 [1995]). Present—Pigott, Jr., P.J., Green, Scudder, Kehoe and Hayes, JJ.