Ward v. Bennett

—In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Standards and Appeals of the City of New York, dated November 22, 1988, which denied the petitioners’ application under General City Law § 35 to permit the erection of a one-family dwelling on their property, the petitioners appeal from a judgment of the Supreme Court, Richmond County (Sangiorgio, J.), dated March 8, 1989, which denied the application and dismissed the proceeding without prejudice to any rights which the petitioners may have under New York City Charter § 197-c. Ordered that the judgment is affirmed, with costs. Contrary to the petitioners’ contention, the respondents’ denial of their application to build a one-family dwelling in the bed of a mapped street pursuant to General City Law § 35 was neither arbitrary nor an abuse of discretion. General City Law § 35 provides that any decision of a board of appeals with respect to such a building permit shall be subject to review "in the same manner and pursuant to the same provisions as in appeals from the decision of such board upon zoning regulations”. It is well settled that the courts may set aside the determination of a zoning board only where the record reveals illegality, arbitrariness or an abuse of discretion. The determination of the responsible officials in the affected community will be sustained if it has a rational basis (see, Matter of Cowan v Kern, 41 NY2d 591; Matter of Faham v Bookman, 151 AD2d 665, 666). Here, the evidence of objections to the building permit from the New York City Department of Transportation and the New York City Department of Environmental Protection provided ample support for the respondents’ denial of the building permit. There is no indication that the denial of the permit was irrational. In addition to the application for a building permit pursu [682] ant to General City Law § 35, the petitioners also had available to them the opportunity to apply for a demapping of the roadbed pursuant to New York City Charter §§ 197-c through 199, also known as the Uniform Land Use Review Procedure (hereinafter ULURP). Among the requirements of ULURP are community board involvement and notice to the public to be followed by a public hearing. Accordingly, it cannot be said from this record that the petitioners exhausted their administrative remedies (see, Borducci v City of Yonkers, 144 AD2d 321, 324). Nor is there sufficient evidence in the record to conclude that resort to the administrative remedy available under ULURP would necessarily prove futile (see, Petosa v City of New York, 135 AD2d 800, 803). Under the circumstances, the judgment appealed from is affirmed. Kunzeman, Kooper and Harwood, JJ., concur.