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

223
CA 13-01045
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF CHRISTIAN AIRMEN, INC.,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TOWN OF NEWSTEAD ZONING BOARD OF APPEALS,
RESPONDENT-APPELLANT,
ET AL., RESPONDENT.


J. MATTHEW PLUNKETT, AHMERST, FOR RESPONDENT-APPELLANT.

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


     Appeal from a judgment of the Supreme Court, Erie County (Joseph
R. Glownia, J.), entered March 25, 2013 in a proceeding pursuant to
CPLR article 78. The judgment, among other things, vacated and
annulled the determination of respondent Town of Newstead Zoning Board
of Appeals denying a use variance to authorize the paving of an
existing turf runway at the Akron Airport.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs and the petition is
dismissed.

     Memorandum: Respondent Town of Newstead Zoning Board of Appeals
(ZBA) appeals from a judgment in a special proceeding pursuant to CPLR
article 78, which annulled the ZBA’s determination denying
petitioner’s request for a use variance authorizing the paving of an
alternate runway at the Akron Airport, and granted the requested use
variance. We reverse the judgment and dismiss the petition based on
our conclusion that the ZBA’s determination has a rational basis and
is supported by substantial evidence.

     Contrary to the ZBA’s initial contention, Supreme Court was not
obligated to articulate in greater detail the basis for its
determination. Rather, the judgment of the court may simply “annul or
confirm the determination in whole or in part, or modify it, and may
[also] direct or prohibit specified action by the respondent” (CPLR
7806). Although an oral or written decision by the court must “state
the facts [the court] deem[ed] essential” after it has sat as the
trier of fact (see CPLR 4213 [b]; Thompson v Unczur, 55 AD2d 818, 818-
819, lv denied 42 NY2d 806), there is no such requirement in a special
proceeding (see CPLR 7804 [a]; see generally United Buying Serv. Intl.
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                                                         CA 13-01045

Corp. v United Buying Serv. of Northeastern N.Y., 38 AD2d 75, 76-77,
affd 30 NY2d 822). Thus, the court’s failure to set forth specific
reasons for annulling the ZBA’s determination is not a ground for
reversal.

     The ZBA’s additional contention that the court was required to
remit the matter to the ZBA, rather than granting petitioner’s request
for a use variance, is likewise without merit. The ZBA’s
determination permitted “intelligent . . . review” by the court
inasmuch as the determination addressed all four required components
for establishing unnecessary hardship under Town Law § 267-b (2) (b)
(Matter of Iwan v Zoning Bd. of Appeals of Town of Amsterdam, 252 AD2d
913, 914; cf. Matter of Pazera v Drexelius, 4 AD3d 804, 805; see
generally Matter of Luburic v Zoning Bd. of Appeals of Vil. of
Irvington, 106 AD3d 824, 825) and, in reviewing the determination, the
court itself was authorized to “grant the petitioner the relief to
which [it was] entitled” (CPLR 7806). Moreover, contrary to the ZBA’s
contention, there is no indication in the record that the court based
its decision on a procedural defect in the administrative proceedings;
instead, the court concluded that, as alleged in the petition, “the
action taken by the [ZBA] was illegal, arbitrary, or an abuse of
discretion” (Matter of Kempisty v Town of Geddes, 93 AD3d 1167, 1169,
lv denied 19 NY3d 815, rearg denied 21 NY3d 930 [internal quotation
marks omitted]; see Matter of Pecoraro v Board of Appeals of Town of
Hempstead, 2 NY3d 608, 613). We therefore see no basis for concluding
that the court should have remitted the matter to the ZBA for further
clarification of its determination.

     We nevertheless agree with the ZBA that the court erred in
annulling the determination, and in granting petitioner’s request for
a use variance. Preliminarily, we conclude that there is no record
support for petitioner’s assertion that the alternate runway predated
the enactment of the Town’s first zoning ordinance. Thus, the subject
property is not the site of a prior nonconforming use, regardless
whether petitioner has used it as a runway since the effective date of
the Town’s first zoning ordinance. We further conclude that the ZBA
properly determined that petitioner failed to prove that the denial of
the variance would preclude its realizing a reasonable return on the
subject property, i.e., the first component of establishing
unnecessary hardship (see Town Law § 267-b [2] [b] [1]; see also
Matter of Vil. Bd. of Vil. of Fayetteville v Jarrold, 53 NY2d 254,
257-258; Matter of Conte v Town of Norfolk Zoning Bd. of Appeals, 261
AD2d 734, 735-736). Specifically, petitioner failed to establish that
the subject land could not be successfully used for agricultural
purposes, that the requested variance would have alleviated the
airport’s preexisting financial woes, or even that it would have to
stop using the land for airport purposes and, consequently, to repay
grant money, if its request to pave the alternate runway were denied.

     Notably, the ZBA does not dispute that petitioner established the
second component of unnecessary hardship, i.e., that “the alleged
hardship related to the property in question is unique, and does not
apply to a substantial portion of the district or neighborhood” (Town
Law § 267-b [2] [b] [2]). Even assuming, arguendo, that petitioner
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                                                         CA 13-01045

demonstrated the third component of unnecessary hardship, i.e., that
the requested variance will not alter the essential character of the
neighborhood (see § 267-b [2] [b] [3]), we conclude that the deeds
proffered by the ZBA demonstrate that petitioner did not acquire
portions of the subject property from the former owners until nearly a
decade after enactment of the ordinance. We therefore conclude that
the alleged hardship is self-created and, thus, petitioner failed to
establish the fourth component of unnecessary hardship (see Matter of
Carrier v Town of Palmyra Zoning Bd. of Appeals, 30 AD3d 1036, 1038,
lv denied 8 NY3d 807; Matter of Aiello v Saladino, 132 AD2d 1002,
1002; see also § 267-b [2] [b] [4]).

     While we agree with petitioner that the ZBA “may not base its
decision on generalized community objections,” we do not perceive any
indication in the record that the ZBA based its determination on such
objections (Matter of Ifrah v Utschig, 98 NY2d 304, 308). Although we
are cognizant that petitioner advances safety concerns as a rationale
for seeking the use variance, we note that, “[b]ecause nonconforming
uses are viewed as detrimental to zoning schemes, public policy favors
their reasonable restriction and eventual elimination” (Matter of 550
Halstead Corp. v Zoning Bd. of Appeals of Town/Vil. of Harrison, 1
NY3d 561, 562).

     Finally, we reject petitioner’s contention that, because the ZBA
allegedly granted similar use variances for the subject property in
prior years, its denial of petitioner’s request for the use variance
herein establishes that it acted arbitrarily and in contravention of
its precedent. Rather, we conclude that the record is inadequate to
establish that the ZBA “reach[ed] a different result on essentially
the same facts” when it denied petitioner’s request (Matter of Tall
Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97
NY2d 86, 93 [internal quotation marks omitted]; see generally Matter
of Davydov v Mammina, 97 AD3d 678, 679-680). Specifically, the record
is silent regarding the paving variance allegedly granted in 2008, and
it is unclear from the record whether the 2004 and 2005 variances
pertained to the specific property where the alternate runway is
located.




Entered:   March 28, 2014                       Frances E. Cafarell
                                                Clerk of the Court
