Bracke v. Zoning Board of Appeals of Town of Philipstown

Apr 14, 2003
Versions:304 A.D.2d 663
757 N.Y.S.2d 482

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Philipstown dated July 16, 2001, which granted the appeal of Dorothea Lang from the denial of a building permit to raze her existing house and construct a new house having insufficient setbacks above the flood plain, the petitioners appeal from a judgment of the Supreme Court, Putnam County (Hickman, J.), dated March 29, 2002, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs to the respondent Dorothea Lang.

In a proceeding pursuant to CPLR article 78 to review a de*664termination of a zoning board of appeals, judicial review is limited to ascertaining whether the action taken is illegal or arbitrary and capricious (see Matter of Sasso v Osgood, 86 NY2d 374 [1995]; Matter of Fuhst v Foley, 45 NY2d 441 [1978]). The Supreme Court properly concluded that the determination of the Zoning Board of Appeals of the Town of Philipstown was not illegal or arbitrary and capricious. The requested variance is not substantial and will not have an undesirable effect on the character of the neighborhood, and the difficulties were not self-created (see Town Law § 267-b [3] [b]; Matter of Sasso v Osgood, supra at 384).

The petitioners’ remaining contentions are without merit. Santucci, J.P., Schmidt, Adams and Cozier, JJ., concur.