Posted by: Patricia Salkin | May 2, 2014

NY Appellate Court Holds Town Board’s Decision to Allow a Depth Extension was not Arbitrary and Capricious

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Huntington, which granted the application of the respondents for certain area variances in connection with an application to construct a retail store. The petitioner appeals from an undated judgment of the Supreme Court, Suffolk County that denied the petition and dismissed the proceeding.

The Zoning Board of Appeals of the Town of Huntington (ZBA) granted several area variances so as to allow the respondents, to build a proposed retail store. In making its determination, the ZBA used the balancing test prescribed by Town Law § 267-b (3) (b), and found that the requested variances were not substantial, would not produce an undesirable change in the character of the neighborhood or a detriment to nearby properties, and would not have an adverse effect or impact on the physical or environmental conditions in the neighborhood. The court also found that the ZBA’s determination to grant a certain depth extension pursuant to the Town Code of the Town of Huntington § 198-110 (C) (1) was supported by a rational basis; part of the reasoning that contributed to the rational basis was the fact that the ZBA found that similar depth extensions had been granted to neighboring commercial properties, and that the depth extension was necessary for the reasonable use of the subject parcel.

Accordingly, the Appellate Court upheld that decision of the Town Board, and affirmed the holding of the Supreme Court of Suffolk County.

Harbor Park Realty, LLC v. Modelewski, 984 N.Y.S.2d 601 (N.Y. App. Div. 2d Dept. 2014)


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