Supreme Court, Westchester County

Decided on May 5, 2026

Index No. 75996/2025

Sheralyn Pulver, J.

[*1]

Petitioner, Dynamite Properties, Inc. ("Petitioner"), moves for relief pursuant to Civil Practice Law and Rules ("CPLR") Article 78 seeking to annul and vacate the determination denying an area variance made by the Town of Somers Zoning Board of Appeals (the "Somers ZBA" or "Respondent"), together with costs and disbursements. Respondents have answered, and Petitioner has filed a reply. For the reasons set forth below, the Court now denies the petition.

The Court read and considered the following papers electronically filed via NYSCEF in making its decision:

• Notice of Petition, Verified Petition, Exhibits 1-12, Memorandum of Law, and Request for Judicial Intervention (NYSCEF Doc. Nos. 1-16).

• Verified Answer, Certified Record of Proceedings, Affidavit of Victor Cannistra, Affirmation of Roland A. Baroni, Jr., Esq. with Exhibit A, and Memorandum of Law (NYSCEF Doc. Nos. 21-26).

• Reply Affirmation of Michael V. Caruso, Esq. and Memorandum of Law (NYSCEF Doc. Nos. 29-30).

Relevant Facts

This proceeding involves Petitioner's application for an area variance for its proposed development project in the Town of Somers. Petitioner owns a landlocked 9.78-acre residential parcel, referred to in the petition as the Green Tree Road Subdivision (see Petition, ¶ 9). Petitioner's proposed project involves subdividing the parcel into three residential lots and would require construction of a common driveway originating from a cul-de-sac at the end of Green [*2]Tree Road, an existing residential road (see id. at ¶¶ 13-14). The subdivision is separated from Green Tree Road by the North County Trailway (the "Trailway"), a paved multi-use recreational pathway that is part of the Empire State Trail network; to reach the subdivision, the proposed driveway would necessarily have to cross the Trailway (see id.). The proposed driveway falls within an existing access easement but is subject to review by the New York State Department of Transportation ("NYSDOT"), which owns the Trailway (see id. at ¶¶ 14-15, 39-41, Ex. 4).

Petitioner's design plan for the section of driveway at the Trailway crossing calls for a 12-foot-wide paved asphalt surface with two-foot shoulders consisting of pervious material on either side of the paved surface (see Petition, ¶ 43). The NYSDOT and the Town of Somers Bureau of Fire Prevention reviewed the plan and expressed no objection to the proposed driveway design (see Petition, Exs. 5, 6). However, the Town of Somers Code requires that a common driveway shared by three users must have a minimum width of 16 feet plus two feet of pervious material (see Code of the Town of Somers § A174-29[C]). Accordingly, the Town of Somers Building Inspector found the proposed driveway to be noncompliant (see Petition, ¶ 62, Ex. 8).

On July 14, 2025, Petitioner applied to Respondent for an area variance to allow the section of the proposed driveway at the Trailway crossing to satisfy the Town Code's minimum driveway width requirement (see Petition, Ex. 9).^FN1 A public hearing in connection with Petitioner's application was scheduled, and Respondent accepted comments from members of the public (see Record of Proceedings [NYSCEF Doc. No. 22] ["Record"]). At the hearing on October 21, 2025, Respondent heard from Petitioner's counsel and from members of the Somers ZBA and local residents (see id., pp. 135-139). Among the issues raised before and during the hearing were the fact that the subject area contains wetlands and is prone to flooding, as well as safety hazards posed by increased vehicular traffic at the Trailway crossing (see id., pp. 100, 111, 113-118).

Perhaps most prominently discussed was a potential alternate proposal for access to the Green Tree Road Subdivision to be provided through an abutting landowner's planned development, which would obviate the need for an area variance. The abutting landowner was pursuing a separate development project called Trailside Estates and offered to provide access to the Green Tree Road Subdivision through its main access road "as a gesture of goodwill and in recognition of our collaborative relationship with the Town of Somers" (see Petition, Ex. 10). Prior to the October 21, 2025, hearing, Petitioner's counsel expressed that he did not believe the Trailside Estates proposal was ideal but agreed, at Respondent's insistence, to discuss it with the other landowner's attorney (see Record, pp. 123-125).

Counsel subsequently reported to Respondent that they did not believe the Trailside Estates proposal to be a viable option because, among other things, it did not yet have an approved site plan, rendering any commitment by its owner "purely hypothetical" (see Record, pp. 102-103). Petitioner's counsel argued that Respondent may not defer action or condition approval on "speculative, future arrangements that may never be realized" (id.). The attorney for [*3]the Trailside Estates owner countered that its project was not "purely hypothetical" as it in fact had been actively working toward full site plan approval for more than two years and, toward that end, had obtained a zoning map change from the Town (see id. at pp. 107-109). The attorney expressed that the property owner remained committed to providing access to the Green Tree Road Subdivision and was willing to execute a legal document conferring a legal right of access (see id.). At the October 21, 2025, hearing, Petitioner's counsel reiterated Petitioner's objections to the Trailside Estates proposal (see id. at p. 114).

By resolution dated November 5, 2025, Respondent denied Petitioner's application for an area variance (see Petition, Ex. 12).

Discussion

I. Standard of Review

In an Article 78 proceeding in the nature of mandamus to review, the Court must ascertain whether the challenged determination was arbitrary and capricious, affected by an error of law, made in violation of lawful procedure, or an abuse of discretion (see CPLR § 7803[3]; Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757-58 [1991]; New York City Health and Hosp. Corp. v McBarnette, 84 NY2d 194, 204 [1994]). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (Matter of Peckham v. Calogero, 12 NY3d 424, 431 [2009]; see also Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). "If the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency" (Matter of Peckham, 12 NY3d at 431; see also McCollum v City of New York, 184 AD3d 838, 839-40 [2d Dept. 2020]).

"Upon review, a determination of a zoning board should be regarded as presumptively correct" (Matter of Perlman v Board of Appeals of Vil. of Great Neck Estates, 173 AD2d 832, 832 [2d Dept 1991]). Judicial review of such determination is limited to the "arbitrary and capricious" standard under CPLR § 7803(3) (see Matter of John Hatgis, LLC v DeChance, 126 AD3d 702, 702 [2d Dept 2015]; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 770-771 [2d Dept 2005]). While a court may consider whether substantial evidence supported the ZBA's findings, the "substantial evidence" standard of CPLR § 7803(4) is inapplicable to a ZBA's determination of an application for an area variance (see Matter of Matejko v Board of Zoning Appeals of Town of Brookhaven, 77 AD3d 949, 949 [2d Dept 2010]; Matter of Halperin, 24 AD3d at 770-771). In this context, a court would consider substantial evidence "only to determine whether the record contains sufficient evidence to support the rationality of the Board's determination" (Matter of Matejko, 77 AD3d at 949 [internal citation and quotation marks omitted]). A ZBA's determination must be upheld if it was rational, meaning that "it has some objective factual basis, as opposed to resting entirely on subjective considerations such as community opposition" (Matter of Halperin, 24 AD3d at 772). Judicial review is limited to the record that was before the ZBA, and any new information that is outside such record may not be considered (see Matter of Palmer v Town of New Windsor Zoning Bd. of Appeals, 226 AD3d 688, 690 [2d Dept 2024]).

II. Area Variance Application

Pursuant to Town Law ("TL") § 267-b(3)(b), when determining whether to grant an area variance, a ZBA must consider the benefit to the applicant, as weighed against the detriment to the health, safety, and welfare of the neighborhood or community, should the requested variance be granted. The following statutory factors must also be considered:

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 are 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.

(id.). "[N]o single statutory factor is determinative, but merely one consideration in a broader balancing test" (Matter of John Hatgis, LLC, 126 AD3d at 703). As long as a ZBA balances these considerations in a rational manner, it is not required to substantiate its determination with supporting evidence for each of the five enumerated factors (see Matter of Patrick v Zoning Bd. of Appeals of Vil. Of Russell Gardens, 130 AD3d 741, 741 [2d Dept 2015]; Matter of Traendly v Zoning Bd. of Appeals of Town of Southold, 127 AD3d 1218, 1218-1219 [2d Dept 2015]; Matter of Petikas v Baranello, 78 AD3d 713, 714 [2d Dept 2010]).

Based upon its review of the record in this proceeding, the Court does not find that Respondent acted irrationally, arbitrarily, or otherwise illegally in denying Petitioner's application for an area variance. The resolution denying the area variance stated that the factors enumerated in TL § 267-b(3)(b) were taken into consideration, and nothing in the record, taken as a whole, reflects that assertion to be untrue.

As to Respondent's finding that Petitioner could pursue an alternative method of obtaining ingress through the Trailside Estates proposal, as opposed to an area variance, the Court finds this rational under the circumstances. "It is entirely reasonable for a zoning board to consider alternative, less intrusive means to accomplish a proposed project in light of prevailing zoning regulations" (Matter of Evans v Zoning Bd. of Appeals of Vil. of Buchanan, 15 Misc 3d 1102[A], 2007 NY Slip Op 50461[U], *3-4 [Sup Ct, Westchester County 2007]).

Although obviously not Petitioner's preferred method, Petitioner did not demonstrate that the Trailside Estates proposal was entirely infeasible or otherwise an impossibility. The fact that the Trailside Estates project had not yet received final site plan approval is not dispositive of its viability, and it appears from the record that the landowner advised Petitioner of the steps they had already taken toward obtaining approval. A ZBA may appropriately consider whether an applicant made genuine efforts to obtain property from abutting landowners to avoid the necessity of an area variance (see Matter of Chandler Prop., Inc. v Trotta, 9 AD3d 408, 409 [2d Dept 2004]). Here, it was not irrational to conclude that Petitioner did not exhaustively explore the feasibility of the Trailside Estates proposal before rejecting it.

Unlike in Matter of Schumacher v Town of E. Hampton, NY Zoning Bd. of Appeals, 46 [*4]AD3d 691 (2d Dept 2007), relied upon by Petitioner, Respondent's suggested alternative proposal, if implemented, could provide the benefit Petitioner required (driveway access to its subdivision) without the need for an area variance. In Matter of Schumacher, by reducing the setback of the subject residence from wetlands, the suggested alternative proposal would have led to the opposite result of what the ZBA sought to achieve (see id. at 693). Thus, the alternative proposal in Matter of Schumacher was not feasible and the ZBA's insistence on same was irrational because, even if fully followed through on, it would have had no real effect and was not actually a true alternative. That scenario is not comparable to the suggested alternative proposal in the instant matter.

Similarly, in Matter of Baker v Brownlie, 248 AD2d 527 (2d Dept 1998), also relied upon by Petitioner, the suggested alternative was "clearly erroneous" as the applicant specifically sought to have a patio facing the water, but the ZBA proposed putting the patio elsewhere on the subject property (see id. at 529). Thus, unlike in the instant matter, the proposed alternative in Matter of Baker was not a true alternative because it could not have provided the benefit sought by the applicant.^FN2

Next, there was at least a factual basis from which Respondent could have found that the requested area variance would produce an undesirable change in the character of the community and would have an adverse effect on the physical conditions in the neighborhood. Statements, both orally and in writing, were taken from members of the public and from ZBA members. Contrary to Petitioner's contention, the record does not reflect that Respondent merely succumbed to generalized community opposition. Rather, Respondents heard from local area residents with personal knowledge of the site, which is proper for a ZBA to consider (see Matter of Millennium Custom Homes, Inc. v Young, 58 AD3d 740, 741 [2d Dept 2009]). Moreover, it appears that several of the individuals who either spoke or wrote are neighbors on Green Tree Road (see Record, pp. 100, 115-116). One such email from a Green Tree Road neighbor addressed the effect of the proposed construction on the safety of Trailway users and on the aesthetics of the community (see id. at p. 100). A former NYSDOT engineer opined that the easement, when it was originally granted, was intended for transportation of farm animals on the parcel and not for vehicular traffic in an area frequented by pedestrians and cyclists, which, in his view, posed a safety risk (see id. at p. 115; Affidavit of Victor Cannistra, ¶ 18). To be sure, Petitioner is correct that safety, alone, is not one of the specific considerations enumerated in TL § 267-b(3)(b); however, unsafe conditions certainly can constitute an undesirable change or adverse effect, which are considerations.

Further, it is rational to conclude that the hardship to Petitioner in this case was self-created. A purchaser of property is chargeable with knowledge of all applicable zoning [*5]restrictions and is bound by them (see Matter of Weisman v Zoning Bd. of Appeals of Vil. of Kensington, 260 AD2d 487, 488 [2d Dept 1999]; Matter of McGlasson Realty v Town of Patterson Bd. of Appeals, 234 AD2d 462, 463 [2d Dept 1996]). When it purchased the subject land and proposed to subdivide it, Petitioner knew that a method of ingress and egress would have to be provided. Petitioner also knew or should have known that the Town Code required common driveways shared by three users to be a minimum of 16 feet in width. Yet, Petitioner moved forward with its design plan with a nonconforming section of driveway at the Trailway crossing. Petitioner bore the risk that the NYSDOT would not approve of a 16-foot paved driveway crossing the Trailway.

Lastly, to the extent Respondent concluded that a 25% variance in width was substantial, the Court does not find such conclusion to be irrational under the circumstances. "Courts have consistently held that zoning boards of appeal generally should not, and courts often will not, view substantiality in the abstract. The totality of the relevant circumstances must be evaluated in determining whether a deviation truly is substantial" (Matter of Citizens United to Protect Our Neighborhood-Hillcrest v Town of Ramapo, 2023 NY Slip Op 31194[U], *46-47 [Sup Ct, Rockland County 2023]).

It bears repeating that Respondents were not required to substantiate their determination with evidence supporting each of the considerations set forth in TL § 267-b(3)(b) so long as the determination balancing the considerations was rational (see Matter of Patrick, 130 AD3d at 741; Matter of Traendly, 127 AD3d at 1218-1219; Matter of Petikas, 78 AD3d at 714). The Court finds that Respondent's resolution denying Petitioner's requested area variance was rationally made. Therefore, Petitioner has not met its burden to annul Respondent's determination pursuant to CPLR § 7803(3). Further, Petitioner's second cause of action, pursuant to CPLR § 7803(4), should be denied because "the 'substantial evidence' standard of review is inapplicable to a zoning board's determination of an area variance, since such a determination is not made after a hearing at which evidence is taken pursuant to direction of law" (Matter of Matejko, 77 AD3d at 949; CPLR § 7803[4]).

The parties' remaining contentions, to the extent not rendered academic or explicitly addressed herein, have been considered and found to be unavailing.

Accordingly, for all the foregoing reasons, it is hereby

ORDERED that the petition (motion sequence #1) is denied, without costs or disbursements; and it is further

ORDERED that the Clerk shall enter judgment accordingly.

This constitutes the Decision, Order and Judgment of the Court.

Dated: May 5, 2026

White Plains, New York

HON. SHERALYN PULVER

Acting Supreme Court Justice