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

256
CA 15-00501
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF ELAM SAND & GRAVEL CORP.,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TOWN OF WEST BLOOMFIELD ZONING BOARD OF
APPEALS, SUE S. STEWART, NEIGHBORS TO SUPPORT
WEST BLOOMFIELD, AND CITIZENS TO SUPPORT WEST
BLOOMFIELD, RESPONDENTS-RESPONDENTS.


HOPKINS SORGI & ROMANOWSKI PLLC, EAST AURORA (PETER SORGI OF COUNSEL),
FOR PETITIONER-APPELLANT.

BOYLAN CODE LLP, ROCHESTER (DAVID K. HOU OF COUNSEL), FOR
RESPONDENT-RESPONDENT TOWN OF WEST BLOOMFIELD ZONING BOARD OF APPEALS.

NIXON PEABODY LLP, ROCHESTER (TERENCE L. ROBINSON, JR., OF COUNSEL),
FOR RESPONDENTS-RESPONDENTS SUE S. STEWART, NEIGHBORS TO SUPPORT
WEST BLOOMFIELD, AND CITIZENS TO SUPPORT WEST BLOOMFIELD.


     Appeal from a judgment (denominated order) of the Supreme Court,
Ontario County (Craig J. Doran, A.J.), entered November 28, 2014 in a
proceeding pursuant to CPLR article 78. The judgment, inter alia,
dismissed the petition.

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

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination of respondent Town of West
Bloomfield Zoning Board of Appeals (ZBA) denying its application for a
use variance to operate a sand and gravel mine. Contrary to
petitioner’s contention, Supreme Court properly dismissed the petition
upon determining that the denial of the application for a use variance
had a rational basis, and was not arbitrary and capricious.

     It is undisputed that, at the time petitioner entered into a
lease with the landowner, mining was a permitted use provided that a
special use permit was obtained. However, before a special use permit
was issued to petitioner, the West Bloomfield Town Board passed a
resolution adopting a moratorium on sand and gravel mining operations
in the Town and ultimately adopted a local law that, inter alia,
prohibited mining in the R-1 Low Density district where the subject
property is located. Petitioner then applied for a use variance.
                                 -2-                           256
                                                         CA 15-00501

After considering the information provided by petitioner, as well as
that provided by an engineer retained by the ZBA to review the
application and by opponents of the application, the ZBA determined,
inter alia, that petitioner failed to establish three of the four
factors constituting the unnecessary hardship required for the
issuance of a use variance (see Town Law § 267-b [2] [b]).
Specifically, the ZBA determined that petitioner failed to establish
that the property could not realize a reasonable return with permitted
uses; that the hardship was unique to the property and does not apply
to a substantial portion of the district or neighborhood; and that
issuing the variance would not alter the essential character of the
neighborhood (see id.).

     It is well established that “[c]ourts may set aside a zoning
board determination only where the record reveals that the board acted
illegally or arbitrarily, or abused its discretion, or that it merely
succumbed to generalized community pressure . . . ‘It matters not
whether, in close cases, a court would have, or should have, decided
the matter differently. The judicial responsibility is to review
zoning decisions but not, absent proof of arbitrary and unreasonable
action, to make them’ ” (Matter of Pecoraro v Board of Appeals of Town
of Hempstead, 2 NY3d 608, 613). We conclude that the court properly
determined that the ZBA’s determination has a rational basis and is
not arbitrary and capricious (see CPLR 7803 [3]). Contrary to
petitioner’s contention, we further conclude that the determination is
not affected by an error of law inasmuch as the ZBA properly applied
the factors constituting unnecessary hardship set forth in Town Law
§ 267-b (2) (b). We note that, although petitioner provided expert
testimony with respect to those factors, “it is the ‘sole province of
the ZBA . . . as administrative factfinder’ to resolve issues of
credibility” (Matter of HoliMont, Inc. v Village of Ellicottville
Zoning Bd. of Appeals, 112 AD3d 1315, 1315). In view of our
determination that the ZBA’s determination with respect to Town Law
§ 267-b (2) (a) was not affected by an error of law, we need not
address petitioner’s contention concerning the Town Code.




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
