Hyperlawhypertext legal database Welsh v. Town of Amherst Zoning Board of Appeals 270 A.D.2d 844

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Welsh v. Town of Amherst Zoning Board of Appeals

270 A.D.2d 844 Court N.Y. App. Div. Decision date 2000-03-29 English

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p. 844
In the Matter of Patrick J. Welsh et al., Appellants, v Town of Amherst Zoning Board of Appeals et al., Respondents.
[706 NYS2d 281]

—Judgment unanimously affirmed without costs. Memorandum: Petitioners appeal from a judgment that confirmed the determination of respondent Town of Amherst Zoning Board of Appeals (ZBA) granting a use variance to permit use of an 11.1+ acre parcel of land located in a suburban-agricultural district as a 100-unit senior citizen housing complex. We reject the contention of petitioners that the granting of the use variance did not comport with the requirements of Town Law § 267-b and that the ZBA failed to make adequate findings. Where, as here, the determination of the ZBA has a rational basis and is supported by substantial evidence, it is entitled to great deference and must be sustained (see, Matter of Farrell v Johnson, 266 AD2d 873 ; Matter of Village of Honeoye Falls v Town of Mendon Zoning Bd. of Appeals, 237 AD2d 929 ). “[T]he record * * * disclose[s] concrete proof that the landowner could not realize a reasonable return without the [use variance]” (Matter of Village Bd. v Jarrold, 53 NY2d 254 , 259; see, Town Law § 267-b [2] [b] [1]; Matter of Geampa v Walck [appeal No. 2], 222 AD2d 1072 ; cf., Matter of Conte v Town of Norfolk Zoning Bd. of Appeals, 261 AD2d 734 ,

p. 845
736). The record further establishes that the hardship is due to unique characteristics of the property (see, Town Law § 267-b [2] Ob] [2]), including, inter alia, two separate areas of wetlands (cf, Matter of Amco Dev. v Zoning Bd. of Appeals, 185 AD2d 637 , 638) and its location at a major intersection (see, Matter of Rothenberg v Board of Zoning Appeals, 232 AD2d 568 , 570); that the proposed use will not alter the essential character of the locality (see, Town Law § 267-b [2] [b] [3]; Matter of Douglaston Civic Assn, v Klein, 51 NY2d 963 , 965); and that the hardship was not self-created (see, Town Law § 267-b [2] [b] [4]; cf., Matter ofFerruggia v Zoning Bd. of Appeals, 233 AD2d 505 , 507). We further reject the contention of petitioners that the ZBA did not grant the minimum variance necessary to address the hardship (see, Town Law § 267-b [2] [c]; cf., Matter of Foster v Saylor, 85 AD2d 876 , 878).

Petitioners also contend that the ZBA’s determination violates the requirements of the State Environmental Quality Review Act (ECL art 8; see, 6 NYCRR part 617). We disagree. The ZBA properly identified the relevant areas of environmental concern, took the requisite hard look at those areas of concern and made a reasoned elaboration of the basis for its findings (see, Akpan v Koch, 75 NY2d 561 , 570; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400 , 417). Although the ZBA should not have approved the use variance until after issuing a negative declaration, the subsequent filing of the negative declaration and the re-vote affirming the granting of the use variance based on the evidence presented before and during the public hearing effectively cured the procedural error (see, Matter of Golden Triangle Assocs. v Town Bd., 185 AD2d 617 , 617-618). (Appeal from Judgment of Supreme Court, Erie County, Doyle, J., for Mintz, J., pursuant to CPLR 9002 — CPLR art 78.) Present — Green, J. P., Hayes, Hurlbutt and Lawton, JJ.

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