IN RE: Noel MONTE (1999)

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Town of Shelter Island dated June 24, 1997, which, after a hearing, denied the petitioner's request for a variance, the appeal is from a judgment of the Supreme Court, Suffolk County (Oshrin, J.), dated December 31, 1997, which granted the petition, annulled the determination and directed that the variance be granted.

ORDERED that the judgment is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed on the merits.

The petitioner hired a contractor to install a pool and a deck on his property.   When the job was completed, the petitioner discovered that due to the contractor's error, the pool was not located in the proper position and that it violated a 30-foot setback requirement of the Town of Shelter Island.   The petitioner therefore sought a variance, asserting that he would sustain economic hardship if he was required to relocate the pool.   The Town refused to grant a variance, but the Supreme Court, inter alia, annulled that determination.   We reverse.

Under the circumstances of this case, the Zoning Board's determination to deny the variance was neither illegal, arbitrary, nor an abuse of discretion (see, Matter of Seumenicht v. Zoning Bd. of Appeals of City of Rye, 217 A.D.2d 632, 629 N.Y.S.2d 784;  Matter of Carlucci v. Board of Zoning Appeals of Town of Philipstown, 205 A.D.2d 688, 613 N.Y.S.2d 665;  Matter of Slakoff v. Hitchcock, 194 A.D.2d 613, 599 N.Y.S.2d 63;  Matter of Fendelman v. Zoning Bd. of Appeals of Vil. of Scarsdale, 178 A.D.2d 478, 577 N.Y.S.2d 138;  Matter of Nammack v. Krucklin, 149 A.D.2d 596, 540 N.Y.S.2d 277).

MEMORANDUM BY THE COURT.