Cicio v. Board of Zoning Appeals

In a proceeding pursuant to CFLR article 78 to review a determination of the Board of Zoning Appeals of the Town of Brookhaven, dated June 4, 2003, which, after a hearing, denied the petitioner’s application for area variances, the appeal is from a judgment of the Supreme Court, Suffolk County [445] (Pitts, J.), entered June 18, 2004, which, upon a decision of the same court dated August 26, 2003, denied the petition and dismissed the proceeding. Ordered that on the Court’s own motion, the notice of appeal from the decision is deemed a premature notice of appeal from the judgment (see CPLR 5520 [c]); and it is further, Ordered that the judgment is affirmed, with costs. The Supreme Court properly upheld the determination of the Zoning Board of Appeals of the Town of Brookhaven (hereinafter the Zoning Board) denying the petitioner’s application for area variances. The Zoning Board’s determination was rationally based, upon its balancing of the factors set forth in Town Law § 267-b (3) (b), and is supported by substantial evidence (see Matter of Ifrah v Utschig, 98 NY2d 304 [2002]; Matter of Sasso v Osgood, 86 NY2d 374, 384 n 2 [1995]; Matter of DeJosia v Trotta, 11 AD3d 534 [2004]; Matter of Inlet Homes Corp. v Zoning Bd. of Appeals of Town of Hempstead, 304 AD2d 758 [2003], affd 2 NY3d 769 [2004]). The petitioner’s remaining contention is unpreserved for appellate review, and, in any event, is without merit. S. Miller, J.P, Krausman, Mastro and Fisher, JJ, concur.