Zwitzer v. Zoning Board of Appeals of Town of Canandaigua

Boomer and Pine, J.

(dissenting). We respectfully dissent. Petitioners brought a CPLR article 78 proceeding to annul a determination by respondent which granted only in part their application for an area variance. The zoning ordinance permits lot coverage not in excess of 25%. Petitioners sought a variance to allow a structure covering 32% of their lot, but respondent granted a variance permitting only 29% coverage, finding that petitioners had shown practical difficulty only to that extent. Special Term annulled respondent’s determination as arbitrary and capricious, and directed that petitioners be granted a variance to permit 32% lot coverage. We disagree with the majority’s finding that the Board had any burden which it failed to meet, and we reject the notion that *1025the Board was somehow obligated to grant the variance with respect to coverage of the lot to the full extent requested because it had granted four other substantial variances.

"[L]ocal zoning boards have discretion in considering applications for variances and the judicial function is a limited one. A zoning board determination should not be set aside unless there is a showing of illegality, arbitrariness or abuse of discretion. (Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309.) That is to say, the determination of responsible local officials in the affected community will be sustained if it has a rational basis and is supported by substantial evidence. (Matter of Cowan v Kern, 41 NY2d 591, 599; McGowan v Cohalan, 41 NY2d 434, 438; Matter of Wilcox v Zoning Bd. of Appeals of City of Yonkers, 17 NY2d 249, 255.)” (Matter of Fuhst v Foley, 45 NY2d 441, 444-445.) The determination of respondent was certainly rational, and the evidence on the record supports its decision to limit the area variance to 29% coverage of the lot.

An applicant for a zoning variance must show that " 'strict compliance with the zoning ordinance will result in practical difficulties.’ ” (Matter of Fuhst v Foley, supra, at 445.) Although petitioners were requesting an area variance to permit 32% coverage of the lot, the proof they presented before respondent showed only that a structure on their lot which covered less than 29% of its area would result in a financial loss. This provides an appropriate showing of practical difficulty (see, Matter of National Merritt v Weist, 41 NY2d 438, 442-443), and it was accepted by respondent as a basis for granting an area variance to allow 29% coverage of the lot. Petitioners have failed to establish by any proof that their practical difficulties cannot be overcome with a variance permitting 29% coverage of the lot. Respondent accepted the only showing made by petitioners as its basis for the variance that it did grant. Because there was substantial evidence to support respondent’s determination, we would reverse Special Term, and we would confirm respondent’s determination. (Appeal from judgment of Supreme Court, Ontario County, Wesley, J. — art 78.) Present — Doerr, J. P., Boomer, Green, Pine and Davis, JJ.