August 27, 2015

In Harbor Park Realty, LLC v. Modelweski, 116 A.D.3d 1040, 984 N.Y.S.2d 601 (2d Dept. 2014), the court upheld the approval of certain area variances for a new retail/commercial building.

On March 11, 2010, the Zoning Board of Appeals of the Town of Huntington (ZBA) granted Respondents’ application for certain area variances in connection with the construction of a new retail store. In a proceeding pursuant to CPLR Article 78 to review the ZBA determination, the Supreme Court of Suffolk County denied the petition and dismissed the proceeding. Petitioner appealed and the judgment was affirmed.

In order to review a determination of the ZBA, judicial review is limited to determining whether the action taken is illegal, arbitrary and capricious, or an abuse of discretion. In this particular case, the court found that the ZBA applied the balancing test and found that the variances were not substantial, and would not produce an undesirable change in the character nor detrimentally effect the physical or environmental conditions of the neighborhood. Additionally, the ZBA granted a certain depth extension, which was supported by facts in the record i.e. similar depth extensions had been granted to neighboring commercial properties, and that it was necessary for the reasonable use of the subject property. The court affirmed the ZBA’s determination because it was not illegal, arbitrary and capricious, nor an abuse of discretion, and was supported by facts in the record.

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