IN RE: MILLENNIUM CUSTOM HOMES (2009)

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Babylon dated November 30, 2006, which, after a hearing, denied the petitioner's application for area variances, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Kerins, J.), dated December 10, 2007, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

 Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion (see Matter of Fuhst v. Foley, 45 N.Y.2d 441, 444, 410 N.Y.S.2d 56, 382 N.E.2d 756).   Thus, a determination of a zoning board made after a public hearing should be sustained if it has a rational basis and is supported by evidence in the record (see Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 308, 746 N.Y.S.2d 667, 774 N.E.2d 732;  Matter of Ceballos v. Zoning Bd. of Appeals of Town of Mount Pleasant, 304 A.D.2d 575, 758 N.Y.S.2d 139;  Matter of Linzenberg v. Summer, 277 A.D.2d 316, 715 N.Y.S.2d 886).

 In determining an application for an area variance, a zoning board must engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the area variance is granted (see Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384, 633 N.Y.S.2d 259, 657 N.E.2d 254).   A zoning board must consider (1) whether the granting of the variance would result in undesirable change in the character of the neighborhood, or a detriment to neighboring properties, (2) whether the benefit sought can be achieved by some method other than an area variance, (3) whether the requested variance is substantial, (4) whether the grant of the variance will have an adverse impact upon the physical or environmental conditions in the neighborhood, and (5) whether the alleged difficulty is self-created (see Town Law § 267-b[3][b] ).  A zoning board may not base its decision on generalized community objections (see Matter of Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, 1002, 665 N.Y.S.2d 627, 688 N.E.2d 501;  Matter of 450 Sunrise Highway, v. Town of Oyster Bay, 287 A.D.2d 714, 732 N.Y.S.2d 83).

 Here, with respect to the issues of whether the variances would result in an undesirable change in the character of the community, or would have an adverse impact on the physical or environmental conditions in the neighborhood, the Zoning Board of Appeals of the Town of Babylon (hereinafter the ZBA) heard detailed oral statements from area residents based on personal knowledge, not mere generalized community opposition (see Matter of Fagan v. Colson, 49 A.D.3d 877, 856 N.Y.S.2d 153).   The ZBA also had before it memoranda from the Town of Babylon Planning Division and Department of Environmental Control objecting to development on a lot of this size due to area congestion, indicating that most lots in the area are larger than the subject lot, and that lots of similar size were developed before the Zoning Code took effect.   Contrary to the petitioner's contentions, the ZBA provided a rational explanation for denying the application even though it had granted variance applications in two prior instances involving facts that were only marginally similar to the instant dispute (see Matter of Berk v. McMahon, 29 A.D.3d 902, 814 N.Y.S.2d 753;  cf. Matter of Campo Grandchildren Trust v. Colson, 39 A.D.3d 746, 834 N.Y.S.2d 295).

Furthermore, the requested variances are substantial, considering the significant deviations from the Zoning Code requirements and the cumulative effect of the multiple variances requested (see Matter of Josato, Inc. v. Wright, 35 A.D.3d 470, 826 N.Y.S.2d 381;  Matter of Ron Rose Group v. Baum, 275 A.D.2d 373, 712 N.Y.S.2d 174;  Matter of Tetra Bldrs. v. Scheyer, 251 A.D.2d 589, 674 N.Y.S.2d 764;  cf. Matter of Buckley v. Amityville Vil. Clerk, 264 A.D.2d 732, 694 N.Y.S.2d 739;  Matter of Townwide Props. v. Zoning Bd. of Appeals of Town of Huntington, 143 A.D.2d 757, 533 N.Y.S.2d 466).

Moreover, the hardship was self-created, since the petitioner is charged with knowledge of the applicable Zoning Code and had no guarantee that the property could be developed (see Matter of Byron Assoc. v. Zoning Bd. of Appeals of Town of Mamaroneck, 142 A.D.2d 643, 531 N.Y.S.2d 11).

Thus, the ZBA's denial of the petitioner's application has a rational basis and is supported by evidence in the record, and was properly confirmed.