PAZERA v. DREXELIUS

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Henry PAZERA and Frances Pazera, Petitioners-Appellants, v. John DREXELIUS, Victor Haggblom, Eugene Russell, Pat Perkins, and Mary Brophy-Moore, Constituting the Zoning Board of Appeals of Town of Webb, Respondents-Respondents.

Decided: April 29, 2005

PRESENT:  GREEN, J.P., SCUDDER, GORSKI, AND LAWTON, JJ. Kernan and Kernan, P.C., Utica (Kevin G. Martin of Counsel), for Petitioners-Appellants. Frye, Foley & Carbone, Utica (Richard A. Frye of Counsel), for Respondents-Respondents.

Petitioners appeal from a judgment dismissing their CPLR article 78 petition and confirming respondents' determination denying their application for an area variance.   This Court previously held the case, reserved decision and remitted the matter to respondents to set forth the factual basis for their determination (Matter of Pazera v. Drexelius, 4 A.D.3d 804, 771 N.Y.S.2d 443).   Upon remittal, the Zoning Board of Appeals of the Town of Webb (Board) made detailed findings regarding the statutory factors set forth in Town Law § 267-b (3)(b) in support of its determination.   We conclude that the determination has a rational basis and is supported by substantial evidence and therefore affirm the judgment (see Matter of Inlet Homes Corp. v. Zoning Bd. of Appeals of Town of Hempstead, 304 A.D.2d 758, 757 N.Y.S.2d 784, affd. 2 N.Y.3d 769, 780 N.Y.S.2d 298, 812 N.E.2d 1246;  Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 308, 746 N.Y.S.2d 667, 774 N.E.2d 732).   The record supports the Board's determination that the construction of a residential property on petitioners' lot would create an undesirable change in the neighborhood and a detriment to nearby properties, the proposed variances of minimum lot size and front and rear setback requirements are substantial, and petitioners' alleged difficulty was self-created (see § 267-b [3][b] [1], [3], [5];  Inlet Homes Corp., 304 A.D.2d at 759, 757 N.Y.S.2d 784;  Matter of Sakrel, Ltd. v. Roth, 176 A.D.2d 732, 735-737, 574 N.Y.S.2d 972, appeal dismissed 79 N.Y.2d 851, 580 N.Y.S.2d 200, 588 N.E.2d 98).

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

MEMORANDUM: