

Matter of Towers v Weiss (2015 NY Slip Op 06598)





Matter of Towers v Weiss


2015 NY Slip Op 06598


Decided on August 19, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on August 19, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
ROBERT J. MILLER
COLLEEN D. DUFFY, JJ.


2013-08266
 (Index No. 4323/13)

[*1]In the Matter of Michael T. Towers, petitioner,
vDavid P. Weiss, etc., et al., respondents.


William A. DiConza, Oyster Bay, N.Y., for petitioner.
Sahn Ward Coschignano & Baker, PLLC, Uniondale, N.Y. (Thomas McKevitt of counsel), for respondents Andrew J. Mihalick, Kathleen M. Mihalick, and Kristin Elizabeth Kelsch, and Joseph J. Ra, Town Attorney, Hempstead, N.Y. (Frederico A. Amorini of counsel), for respondents David P. Weiss, Chairman, Gerald Wright, Katuria D'Amato, John Rangano, Frank Mistero, Joseph Pellegrini, and Kimberly Perry, constituting the Town of Hempstead Board of Appeals (one brief filed).

DECISION & JUDGMENT
Proceeding pursuant to CPLR article 78 to review a determination of the Town of Hempstead Board of Appeals dated February 27, 2013, which, after a hearing, granted the applications of Andrew J. Mihalick, Kathleen M. Mihalick, Robert Douglas, and Kristin Elizabeth Kelsch for certain area variances.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
The Supreme Court should have disposed of this proceeding on the merits instead of transferring it to this Court pursuant to CPLR 7804(g) (see Matter of Matejko v Board of Zoning Appeals of Town of Brookhaven, 77 AD3d 949, 949; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 769). Nevertheless, we will decide the case on the merits in the interest of judicial economy (see Matter of Halperin v City of New Rochelle, 24 AD3d at 772-773; Matter of Country Glen Assoc. v Newburger, 305 AD2d 594, 595).
The determination of the Town of Hempstead Board of Appeals (hereinafter the Board) to grant applications for certain area variances was rational. "Local zoning boards have broad discretion in considering applications for 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 Ifrah v Utschig, 98 NY2d 304, 308; see Matter of Matejko v Board of Zoning Appeals of Town of Brookhaven, 77 AD3d 949, 949). "[A] zoning board's determination should be sustained on judicial review if it has a rational basis and is supported by evidence in the record" (Matter of Traendly v Zoning Bd. of Appeals of Town of Southold, 127 AD3d 1218, 1219). The transcript of the public hearing conducted by the Board on January 30, 2013, and the Board's findings of fact and conclusions of law dated April 24, 2013, show that the Board properly performed the required [*2]balancing test (see Town Law § 267-b[3][b]). The Board's determination to grant the subject area variances had a rational basis and was supported by evidence in the record (see Matter of Ifrah v Utschig, 98 NY2d at 308; Matter of Matejko v Board of Zoning Appeals of Town of Brookhaven, 77 AD3d at 949) and, thus, was neither illegal, arbitrary, nor an abuse of discretion.
RIVERA, J.P., DICKERSON, MILLER and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


