Riina v. Baum ( 2002 )

—In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Mount Pleasant, dated February 8, 2001, which, after a hearing, granted the application of the respondent Roc-Bonnie Associates, Inc., for two area variances, the appeal is from a judgment of the Supreme Court, Westchester County (Lefkowitz, J.), entered October 15, 2001, which confirmed the determination and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

Contrary to the petitioner’s contention, the prior application by the respondent Roc-Bonnie Associates, Inc. (hereinafter Roc-Bonnie), for two area variances was factually distinguishable from the instant application. Accordingly, the Zoning Board of Appeals of the Town of Mount Pleasant (hereinafter the ZBA) was not precluded from considering the second application on its merits (see Matter of Josato, Inc. v Wright, 288 AD2d 384; Matter of Peccoraro v Humenik, ,258 AD2d 465).

With respect to the merits, the Supreme Court correctly found that the ZBA properly considered all of the factors set forth in Town Law § 267-b. The ZBA’s determination that the variances would not cause an undesirable change in the character of the neighborhood is supported by substantial evidence in the record and has a rational basis (see Matter of Ifrah v Utschig, 98 NY2d 304; Matter of Sasso v Osgood, 86 NY2d 374; Matter of De Sena v Board of Zoning Appeals of Inc. Vil. of Hempstead, 45 NY2d 105; Matter of Tarantino v Zoning Bd. of Appeals of Town of Brookhaven, 228 AD2d 511).

The petitioner’s remaining contentions either are not properly before this Court (see Matter of Village of Tarrytown v Planning Bd. of Vil. of Sleepy Hollow, 292 AD2d 617, lv denied 98 NY2d 609; Taormino v State of New York, 286 AD2d 490), or are without merit. Ritter, J.P., Luciano, Cozier and Rivera, JJ., concur.