                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 16, 2016                     521373
________________________________

In the Matter of
   REHABILITATION SUPPORT
   SERVICES, INC.,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

CITY OF ALBANY BOARD OF ZONING
   APPEALS,
                    Respondent.
________________________________


Calendar Date:   April 20, 2016

Before:   Lahtinen, J.P., McCarthy, Devine, Clark and Mulvey, JJ.

                             __________


      Lemery Greisler LLC, Albany (James E. Braman of counsel),
for appellant.

      John J. Reilly, Corporation Counsel, Albany (Valerie A.
Lubanko of counsel), for respondent.

                             __________


Lahtinen, J.P.

      Appeal from a judgment of the Supreme Court (Zwack, J.),
entered September 16, 2014 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent denying
petitioner's request for, among other things, a use variance.

      Petitioner owns former Public School 22 and an adjacent
parcel on Second Street in the City of Albany. The properties
are located in an area zoned R-2A for single and two-family
detached dwellings and houses of worship. In October 2013,
petitioner applied to respondent for, among other things, a use
                              -2-                521373

variance allowing it to raze both the school building and house
on the adjacent lot in order to construct a 24-bed community
residence for alcohol and substance abuse rehabilitation.
Petitioner noted that the prior owner of the school had been
granted a use variance in January 2008 to refurbish the school
building for a similar purpose, but had then failed to move
forward with the project. Following a public hearing, respondent
denied petitioner's application in February 2014. Petitioner
commenced this proceeding asserting, among other things, that
respondent's action was arbitrary because petitioner had
satisfied the criteria for a use variance and also that a use
variance had been granted to the prior owner. Supreme Court
dismissed the petition. Petitioner appeals.

      "The law is well settled that '[l]ocal 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 Russo v City of Albany Zoning Bd., 78
AD3d 1277, 1279 [2010], quoting Matter of Ifrah v Utschig, 98
NY2d 304, 308 [2002]; accord Matter of Schaller v Town of New
Paltz Zoning Bd. of Appeals, 108 AD3d 821, 824 [2013]). "Thus, a
determination of a zoning board should be sustained upon judicial
review if it has a rational basis and is supported by substantial
evidence" (Matter of Ifrah v Utschig, 98 NY2d at 308 [citations
omitted]; see Matter of Androme Leather Corp. v City of
Gloversville, 1 AD3d 654, 656 [2003], lv denied 1 NY3d 507
[2004]). "To qualify for a use variance, [petitioner] had the
burden to show that (1) [it] cannot realize a reasonable return
if the property is used for a permitted purpose, (2) the hardship
results from unique characteristics of the property, (3) the
proposed use will not alter the essential character of the
neighborhood, and (4) the hardship has not been self-created"
(Matter of Sullivan v City of Albany Bd. of Zoning Appeals, 20
AD3d 665, 666 [2005] [citations omitted], lv denied 6 NY3d 701
[2005]; see Code of City of Albany § 375-26 [B] [2] [a]; see also
Matter of Nemeth v Village of Hancock Zoning Bd. of Appeals, 127
AD3d 1360, 1361 [2015]; Matter of Center Sq. Assn., Inc. v City
of Albany Bd. of Zoning Appeals, 19 AD3d 968, 970 [2005]).
                              -3-                521373

      Respondent addressed each of the relevant factors regarding
a use variance, and its determination that petitioner failed to
establish those factors has a rational basis and is supported by
substantial evidence. With respect to a reasonable return,
petitioner paid a total of slightly over $40,000 for both
properties and received almost that amount from Albany County
toward those purchases, revealing that it had invested less than
$500 in acquiring the properties. Petitioner presented limited
and incomplete proof regarding whether a reasonable return could
be realized on this small investment by any of the allowable uses
within the zone. Respondent acknowledged that a potential
hardship resulted from the old, unused school building, but noted
that petitioner's plan included demolishing such building and
that, once demolished, the site could be used for a conforming
use. Moreover, the project included the adjoining property where
a single family residence would be razed, which would result in a
nonconforming use replacing a conforming use.

      Although respondent had determined in 2008 that a community
rehabilitation residence would not alter the essential character
of the neighborhood, respondent sufficiently distinguished the
current application made about six years later. In the interim,
several other similar residences had been approved in the
community resulting in a saturation of such uses. Furthermore,
the current application resulted in removal of the historical
school building whereas the earlier application included
refurbishing the structure. At the time that petitioner acquired
the property, it was aware that its project would be a
nonconforming use. Respondent rationally decided that
petitioner's hardship was self-created. Upon review of the
record and according appropriate deference to respondent's
determination, we are unpersuaded that Supreme Court erred in
dismissing the petition.

     McCarthy, Devine, Clark and Mulvey, JJ., concur.
                        -4-                  521373

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
