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THE ADMINISTRATIVE RECORD SUPPORTED THE GRANT OF THE ARIA VARIANCE BY THE ZONING BOARD OF APPEALS; SUPREME COURT SHOULD NOT HAVE SUBSTITUTED ITS JUDGMENT FOR THE BOARD’S (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the zoning board of appeals (ZBA) properly granted an area variance and Supreme Court should not have substituted its judgment for the board’s:

The administrative record and the ZBA’s formal return in the CPLR article 78 proceeding establish that the ZBA considered the five statutory factors, including whether the alleged difficulty was self-created … . Thus, we conclude that the ZBA “rendered its determination after considering the appropriate factors and properly weighing the benefit to the [applicants] against the detriment to the health, safety and welfare of the neighborhood or community” if the variance was granted … . We further conclude that the record establishes that the ZBA’s determination had the requisite rational basis … . It was therefore error for the court to substitute its judgment for that of the ZBA, “even if such a contrary determination is itself supported by the record” … . Matter of Gasparino v Town of Brighton Zoning Bd. of Appeals, 2021 NY Slip Op 06239, Fourth Dept 11-12-21

 

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