        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1215
CA 13-00613
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF HOLIMONT, INC.,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

VILLAGE OF ELLICOTTVILLE ZONING BOARD OF
APPEALS AND VILLAGE OF ELLICOTTVILLE,
RESPONDENTS-RESPONDENTS.


DAMON MOREY LLP, CLARENCE (COREY A. AUERBACH OF COUNSEL), FOR
PETITIONER-APPELLANT.

BACKHAUS & SIMON, P.C., OLEAN (ROBERT J. SIMON OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS.


     Appeal from a judgment (denominated order and judgment) of the
Supreme Court, Cattaraugus County (Michael L. Nenno, A.J.), entered
June 21, 2012 in a proceeding pursuant to CPLR article 78. The
judgment, among other things, denied the petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner commenced this proceeding seeking to
challenge the determination of respondent Village of Ellicottville
Zoning Board of Appeals (ZBA) denying its request for a use variance
to permit it, inter alia, to extend a ski lift over a parcel of land
that it had acquired at 36 Adams Street in the Village of
Ellicottville. Supreme Court properly denied the petition. “The
determination of the ZBA is entitled to great deference and must be
sustained where, as here, it has a rational basis and is supported by
substantial evidence” (Matter of Farrell v Johnson, 266 AD2d 873,
873). The ZBA properly determined that petitioner failed to show that
it was entitled to the use variance inasmuch as it failed to establish
that it could not realize a reasonable rate of return without the use
variance (see generally Matter of Cohen v Hahn, 155 AD2d 969, 970).
Although petitioner presented the testimony of an expert on that
point, we note that it is the “sole province of the ZBA . . . as
administrative factfinder” to resolve issues of credibility (Matter of
Supkis v Town of Sand Lake Zoning Bd. of Appeals, 227 AD2d 779, 781).
Additionally, petitioner failed to establish that its proposed
development would not alter the essential character of the surrounding
neighborhood (see Matter of Genser v Board of Zoning & Appeals of Town
of N. Hempstead, 65 AD3d 1144, 1147). Indeed, the record establishes
                                 -2-                         1215
                                                        CA 13-00613

that permitting petitioner to maintain an active ski lift and
snowmaking equipment on its parcel will alter the quiet residential
area surrounded by nature in which that parcel is located because of
the increased use of the parcel. Finally, the record establishes that
petitioner’s hardship was self-created inasmuch as petitioner
previously had stipulated to restrictions calling for an “undisturbed
green area” in the location petitioner now seeks to develop (id.; see
Matter of Carrier v Town of Palmyra Zoning Bd. of Appeals, 30 AD3d
1036, 1038, lv denied 8 NY3d 807).




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
