Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on April 15, 2026

2023-00012, (Index No. 603167/22)

Hector D. Lasalle, P.J.

Cheryl E. Chambers

William G. Ford

James P. Mccormack, JJ.

[*1]

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Town of Hempstead Board of Zoning Appeals dated February 16, 2022, as supplemented by findings of fact dated April 6, 2022, which, after a hearing, granted the application of Sunrise Development, Inc., for area variances, the petitioners appeal from a judgment of the Supreme Court, Nassau County (Erica L. Prager, J.), entered November 7, 2022. The judgment, insofar as appealed from, denied that branch of the amended petition which was to review the determination dated February 16, 2022, as supplemented by the findings of fact dated April 6, 2022, and, in effect, dismissed the proceeding.

ORDERED that the judgment is affirmed insofar as appealed from, with costs to the respondent Sunrise Development, Inc.

Sunrise Development, Inc. (hereinafter Sunrise), is a contract vendee of certain property located in Oceanside (hereinafter the property). In 2021, Sunrise applied to the Board of Appeals of the Town of Hempstead for area variances that would permit Sunrise to construct an assisted living facility on the property.

In January 2022, a hearing was held before the Board, and on February 16, 2022, the Board granted the application. Thereafter, the petitioners commenced this CPLR article 78 proceeding, inter alia, to review the Board's determination. The petition was amended after the Board issued findings of fact dated April 6, 2022. In a judgment entered November 7, 2022, the Supreme Court, among other things, denied that branch of the amended petition which was to review the determination, as supplemented by the findings of fact, and, in effect, dismissed the proceeding. The petitioners appeal.

The Supreme Court properly determined that the Board's determination to grant the requested area variances was not arbitrary and capricious. "Local zoning boards have broad discretion in considering applications for area variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion" (Matter of deBordenave v Village of Tuxedo Park Bd. of Zoning Appeals, 168 AD3d 838, 839). "The determination of a local zoning board is entitled to great deference, and will be set aside only if it is illegal, arbitrary and capricious, or irrational" (Matter of Seaview Assn. of Fire Is., NY, Inc. v Town of Islip Zoning Bd. of Appeals, 221 AD3d 717, 718 [internal quotation marks omitted]; see Matter of 666 OCRTT, LLC v Board of Zoning Appeals of the Town of Hempstead, 200 AD3d 682, 683).

In determining whether to grant an area variance, a zoning board is required to 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 (see Town Law § 267-b[3][b]; Matter of deBordenave v Village of Tuxedo Park Bd. of Zoning Appeals, 168 AD3d at 839). The zoning board must also consider: "(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance" (Town Law § 267-b[3][b]; see Matter of Humphreys v Somers Zoning Bd. of Appeals, 206 AD3d 1000, 1001). A zoning board is "'not required to justify its determination with supporting evidence for each of the five statutory factors as long as its determination balancing the relevant considerations is rational'" (Matter of Humphreys v Somers Zoning Bd. of Appeals, 206 AD3d at 1002, quoting Matter of Kramer v Zoning Bd. of Appeals of Town of Southampton, 131 AD3d 1170, 1172).

Here, the record demonstrates that the Board engaged in the required balancing test and considered the relevant statutory factors (see id.; Matter of Capetola v Town of Riverhead, 192 AD3d 789, 791). Contrary to the petitioners' contention, the evidence before the Board supported its findings that the benefit sought by Sunrise would not produce an undesirable change in the character of the neighborhood, have an adverse impact on the physical or environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community, even if the proposed area variances were arguably substantial and the difficulty was self-created (see Matter of Borrok v Town of Southampton, 130 AD3d 1024, 1025; Matter of Goodman v City of Long Beach, 128 AD3d 1064, 1065).

The parties' remaining contentions are without merit.

Accordingly, the Supreme Court properly denied that branch of the amended petition which was to review the determination dated February 16, 2022, as supplemented by the findings of fact dated April 6, 2022, and, in effect, dismissed the proceeding.

LASALLE, P.J., CHAMBERS, FORD and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court