CONWAY v. TOWN OF IRONDEQUOIT ZONING BOARD OF APPEALS (2007)

Petitioner appeals from a judgment dismissing his CPLR article 78 petition seeking to annul the determination granting the application of respondents Joseph Cattalani and Susan Cattalani (applicants) for area variances allowing them to erect certain fencing on their residential property.   In considering the application, respondent Town of Irondequoit Zoning Board of Appeals (ZBA) was required to weigh the benefit to the applicants of granting the variances against any detriment to the health, safety and welfare of the neighborhood or community affected thereby, taking into account the five factors set forth in Town Law § 267-b(3)(b) (see Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 307-308, 746 N.Y.S.2d 667, 774 N.E.2d 732;  Matter of Sasso v. Osgood, 86 N.Y.2d 374, 382, 633 N.Y.S.2d 259, 657 N.E.2d 254;  Matter of Homeyer v. Town of Skaneateles Zoning Bd. of Appeals, 302 A.D.2d 941, 941-942, 754 N.Y.S.2d 611), and we conclude that the ZBA did so here.   We note that the ZBA is afforded “broad discretion” in determining whether to grant the requested variances (Ifrah, 98 N.Y.2d at 308, 746 N.Y.S.2d 667, 774 N.E.2d 732), and judicial review is limited to whether the determination was illegal, arbitrary or an abuse of discretion (see id., citing Matter of Fuhst v. Foley, 45 N.Y.2d 441, 444, 410 N.Y.S.2d 56, 382 N.E.2d 756;  see also Sasso, 86 N.Y.2d at 386, 633 N.Y.S.2d 259, 657 N.E.2d 254).   A reviewing court may not substitute its judgment for that of the ZBA, even if there is substantial evidence supporting a contrary determination (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;  Matter of DeGroote v. Town of Greece Bd. of Zoning Appeals, 35 A.D.3d 1177, 825 N.Y.S.2d 878;.  Homeyer, 302 A.D.2d at 942, 754 N.Y.S.2d 611).   Upon our review of the record, we conclude that the determination of the ZBA is not illegal, arbitrary or capricious or an abuse of discretion (see Ifrah, 98 N.Y.2d at 308-309, 746 N.Y.S.2d 667, 774 N.E.2d 732;  Matter of Orchard Michael, Inc. v. Falcon, 65 N.Y.2d 1007, 1009, 494 N.Y.S.2d 98, 484 N.E.2d 127;  Homeyer, 302 A.D.2d at 941-942, 754 N.Y.S.2d 611).   Finally, we reject petitioner's contention that the ZBA did not grant the minimum variance necessary to meet the applicants' needs while at the same time preserving and protecting the character of the neighborhood and the health, safety, and welfare of the community (see § 267-b[3][c];  Matter of Welsh v. Town of Amherst Zoning Bd. of Appeals, 270 A.D.2d 844, 845, 706 N.Y.S.2d 281).

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

MEMORANDUM: