YOUNG GROUP v. Steven Schillinger, et al., Intervenors. (2005)

 This CPLR article 78 proceeding was improperly transferred to this Court inasmuch as petitioner does not challenge a determination made as a result of an evidentiary hearing directed by law (see CPLR 7803[4];  7804 [g] ).  Nevertheless, we have reviewed petitioner's contentions in the interest of judicial economy (see Matter of Agusta v. Silva, 201 A.D.2d 405, 608 N.Y.S.2d 623;  Matter of Gomez v. Obot, 170 A.D.2d 1036, 566 N.Y.S.2d 426, lv. denied 78 N.Y.2d 856, 574 N.Y.S.2d 937, 580 N.E.2d 409).   In determining whether to grant or deny an application for an area variance, the zoning board of appeals (board) of a village must consider the statutory factors and weigh the benefit to the applicant if the variance is granted against any resultant detriment to the health, safety and welfare of the neighborhood or community (see Village Law § 7-712-b[3][b];  Matter of Khan v. Zoning Bd. of Appeals of Vil. of Irvington, 87 N.Y.2d 344, 351-352, 639 N.Y.S.2d 302, 662 N.E.2d 782, rearg. denied 87 N.Y.2d 1056, 644 N.Y.S.2d 148, 666 N.E.2d 1062;  Matter of J.H., Jr., & E.T., Sr. Wurz Realty Partnership v. Zoning Bd. of Appeals of Vil. of N.Y. Mills, 249 A.D.2d 984, 985, 672 N.Y.S.2d 557, lv. denied 92 N.Y.2d 813, 680 N.Y.S.2d 906, 703 N.E.2d 764;  see also Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 N.Y.3d 608, 612-613, 781 N.Y.S.2d 234, 814 N.E.2d 404;  Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 307, 746 N.Y.S.2d 667, 774 N.E.2d 732;  Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384-386, 633 N.Y.S.2d 259, 657 N.E.2d 254).   Whether to grant or deny an application for an area variance is committed to the “broad discretion” of the board (Ifrah, 98 N.Y.2d at 308, 746 N.Y.S.2d 667, 774 N.E.2d 732).   Judicial review (see Village Law § 7-712-c) is limited to deciding whether the determination of the board was illegal, arbitrary and capricious or irrational on the record before the board, or an abuse of discretion (see Ifrah, 98 N.Y.2d at 308, 746 N.Y.S.2d 667, 774 N.E.2d 732;  Sasso, 86 N.Y.2d at 386, 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).

Upon our review of the record and the challenged determination of April 6, 2004, we conclude that respondent “failed to engage in the requisite balancing test, ‘considering the factors outlined in [Village Law § 7-712-b(3)(b) ] and weighing the benefit to the applicant[ ] against the detriment to the health, safety and welfare of the neighborhood or community’ ” (Matter of Fusco v. Russell, 283 A.D.2d 936, 936, 725 N.Y.S.2d 255, quoting Khan, 87 N.Y.2d at 351-352, 639 N.Y.S.2d 302, 662 N.E.2d 782).   To the contrary, the record establishes that respondent's determination to deny the application was the result of general community opposition (see Matter of D'Angelo v. Zoning Bd. of Town of Webster, 229 A.D.2d 945, 645 N.Y.S.2d 378, lv. denied 89 N.Y.2d 803, 653 N.Y.S.2d 280, 675 N.E.2d 1233;  see generally Pecoraro, 2 N.Y.3d at 613, 781 N.Y.S.2d 234, 814 N.E.2d 404).   We thus conclude that respondent's denial of petitioner's application is arbitrary and capricious (see Fusco, 283 A.D.2d at 936, 725 N.Y.S.2d 255, citing Matter of Baker v. Brownlie, 248 A.D.2d 527, 529-530, 670 N.Y.S.2d 216;  D'Angelo, 229 A.D.2d at 945, 645 N.Y.S.2d 378). We therefore annul the determination, grant the petition, and remit the matter to respondent to grant petitioner's application for a variance from the 46,000-square-foot lot area requirement of the zoning ordinance (see Village of Lancaster Code § 152-27[A][2] ), thereby allowing petitioner to construct 22 dwelling units on its approximately 37,000-square-foot parcel.

It is hereby ORDERED that the determination be and the same hereby is unanimously annulled on the law without costs, the petition is granted, and the matter is remitted to respondent for further proceedings.

MEMORANDUM: