WELSH v. TOWN OF AMHERST ZONING BOARD OF APPEALS CRS (2000)

 Petitioners appeal from a judgment that confirmed the determination of respondent Town of Amherst Zoning Board of Appeals (ZBA) granting a use variance to permit use of an 11.1± acre parcel of land located in a suburban-agricultural district as a 100-unit senior citizen housing complex.   We reject the contention of petitioners that the granting of the use variance did not comport with the requirements of Town Law § 267-b and that the ZBA failed to make adequate findings.   Where, as here, the determination of the ZBA has a rational basis and is supported by substantial evidence, it is entitled to great deference and must be sustained (see, Matter of Farrell v. Johnson, 266 A.D.2d 873, 697 N.Y.S.2d 900;  Matter of Village of Honeoye Falls v. Town of Mendon Zoning Bd. of Appeals, 237 A.D.2d 929, 654 N.Y.S.2d 534).  “[T]he * * * record disclose[s] concrete proof that the landowner could not realize a reasonable return without the [use variance]” (Matter of Village Bd. v. Jarrold, 53 N.Y.2d 254, 259, 440 N.Y.S.2d 908, 423 N.E.2d 385;  see, Town Law § 267-b [2][b][1];  Matter of Geampa v. Walck [appeal No. 2], 222 A.D.2d 1072, 636 N.Y.S.2d 515;  cf., Matter of Conte v. Town of Norfolk Zoning Bd. of Appeals, 261 A.D.2d 734, 736, 689 N.Y.S.2d 735).   The record further establishes that the hardship is due to unique characteristics of the property (see, Town Law § 267-b [2][b][2] ), including, inter alia, two separate areas of wetlands (cf., Matter of Amco Dev. v. Zoning Bd. of Appeals, 185 A.D.2d 637, 638, 586 N.Y.S.2d 50) and its location at a major intersection (see, Matter of Rothenberg v. Board of Zoning Appeals, 232 A.D.2d 568, 570, 648 N.Y.S.2d 679);  that the proposed use will not alter the essential character of the locality (see, Town Law § 267-b [2][b][3];  Matter of Douglaston Civic Assn. v. Klein, 51 N.Y.2d 963, 965, 435 N.Y.S.2d 705, 416 N.E.2d 1040);  and that the hardship was not self-created (see, Town Law § 267-b [2][b][4];  cf., Matter of Ferruggia v. Zoning Bd. of Appeals, 233 A.D.2d 505, 507, 649 N.Y.S.2d 946).   We further reject the contention of petitioners that the ZBA did not grant the minimum variance necessary to address the hardship (see, Town Law § 267-b [2][c];  cf., Matter of Foster v. Saylor, 85 A.D.2d 876, 878, 447 N.Y.S.2d 75).

 Petitioners also contend that the ZBA's determination violates the requirements of the State Environmental Quality Review Act (ECL art 8;  see, 6 NYCRR part 617).   We disagree.   The ZBA properly identified the relevant areas of environmental concern, took the requisite hard look at those areas of concern and made a reasoned elaboration of the basis for its findings (see, Akpan v. Koch, 75 N.Y.2d 561, 570, 555 N.Y.S.2d 16, 554 N.E.2d 53;  Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298, 494 N.E.2d 429).   Although the ZBA should not have approved the use variance until after issuing a negative declaration, the subsequent filing of the negative declaration and the re-vote affirming the granting of the use variance based on the evidence presented before and during the public hearing effectively cured the procedural error (see, Matter of Golden Triangle Assocs. v. Town Bd., 185 A.D.2d 617, 617-618, 585 N.Y.S.2d 895).

Judgment unanimously affirmed without costs.

MEMORANDUM: