Court Holds Town Board’s Decision to Allow A Depth Extension Was Not Arbitrary And Capricious

Petitioner brought a proceeding under CPLR article 78 to challenge a determination of the Zoning Board of Appeals of the Town of Huntington (“ZBA”) granting Respondent’s application for a depth variance as part of their application to construct a retail store. The Supreme Court, Suffolk County denied the petition and dismissed the proceeding. Petitioner now appeals

On appeal, the Appellate Division noted that the ZBA had granted several area variances so as to allow Respondents to build a proposed retail store. In doing so, the ZBA used the balancing test provided by Town Law § 267-b(3)(b). Under that test, the ZBA found the requested variances were not substantial and would not undesirably change the neighborhood’s character, be a detriment to nearby properties, or adversely effect the physical or environmental conditions in the neighborhood. The Court also found that the ZBA's determination to grant a depth extension pursuant to the Town Code § 198-110(C)(1) had a rational basis, including that the ZBA found similar depth extensions had been granted to neighboring commercial properties, and that the depth extension was necessary for the reasonable use of the subject parcel. Accordingly, the Court upheld that decision of the Town Board, and affirmed the holding of the Supreme Court of Suffolk County.

The case was Harbor Park Realty, LLC v. Modelewski, 984 N.Y.S.2d 601 (App. Div. 2014).

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