Vomero v. City of New York , 864 N.Y.S.2d 159 ( 2008 )

In a proceeding pursuant to CELR article 78 to review a determination of the Board of Standards and Appeals of City of New York dated August 9, 2005, which, after a hearing, granted the application of G.A.C. Catering, Inc., for a use variance, City of New York, Board of Standards and Appeals of City of New York, and Department of Buildings of City of New York appeal, and G.A.C. Catering, Inc., separately appeals, from a judgment of the Supreme Court, Richmond County (Aliotta, J.), dated August 7, 2006, which granted the petition and annulled the determination.

Ordered that the judgment is reversed, on the law, with one bill of costs to the appellants appearing separately and filing separate briefs, the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits.

Pursuant to New York City Zoning Resolution § 72-21, in order to issue the requested use variance, the Board of Standards and Appeals of City of New York (hereinafter the BSA) was required to find that the proposed development by G.A.C. Catering, Inc. (hereinafter GAC), met the following five specific requirements: (a) that because of “unique physical conditions” of the property, conforming uses would impose “practical difficulties or unnecessary hardship;” (b) that also due to “unique physical conditions,” conforming uses would not “enable the owner to realize a reasonable return” from the zoned property; (c) the proposed variances would “not alter the essential character of the neighborhood or district;” (d) the owner did not create the practical difficulties or unnecessary hardship; and (e) only the “minimum variance necessary to afford relief’ is sought. Local zoning boards have broad discretion, and judicial review is thus limited to determining whether a zoning board’s determination was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of B.Z.V. Enter. Corp. v Srinivasan, 35 AD3d 732 [2006]). Here, the BSA’s determination granting GAC’s application for a use variance had a rational basis in the record and was not illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Ifrah v Utschig, 98 NY2d 304, 308-309 [2002]; Matter of DeCaro Capital Inv. Group, LLC v Voekler, 32 AD3d 852 [2006]; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 771 [2005]).

We note that, as to the first factor, the BSA found that some other properties in the area, which have similar characteristics and are in locations similar to the property at issue here, had “unique physical conditions” such that “practical difficulties or unnecessary hardship” would arise with conforming use. There is nothing in the record to support the conclusion that there is any substantial difference between the property at issue here and those other properties (see Matter of Campo Grandchildren Trust v Colson, 39 AD3d 746 [2007]).

Further, the BSA found that the property would not produce a financially feasible return if developed for any of the “as of right” uses. In light of the evidence submitted by GAC, this finding was not arbitrary and capricious, despite the presence of countervailing evidence, which was not conclusive.

Finally, we note that, contrary to the Supreme Court’s determination, the fact that the lot in question was purchased with the knowledge that it was subject to the restrictions sought to be varied, did not, by itself, constitute a self-created hardship (see NY City Zoning Resolution § 72-21 [d]). Fisher, J.E, Florio and Chambers, JJ., concur.

Lifson, J., dissents and votes to affirm the judgment with the following memorandum, in which Angiolillo, J., concurs.