Joseph v. Romano

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Village of Goshen, dated February 13, 1992, denying the petitioners’ application for a variance from the grading and set-back requirements of the Village Zoning Ordinance and from the access requirements of Village Law § 7-736, the petitioners appeal from a judgment of the Supreme Court, Orange County (Owen, J.), dated November 27, 1992, which, after a hearing, denied the petition and dismissed the proceeding. Ordered that the judgment is affirmed, with costs. At a hearing before the Supreme Court, the respondents amply demonstrated that the unimproved portion of a partially dedicated street, Oakcrest Drive, was inaccessible to emergency vehicles because the slope of the right-of-way was steep, with grades ranging from 11.5% to 18.5%, and the right-of-way was inundated by brush and trees. As a result, the Supreme Court properly determined that the respondents’ decision to deny the petitioners’ requested variance was supported by the evidence and was not arbitrary or capricious (see, Matter of Lund v Town Bd., 162 AD2d 798, 800). While the petitioners’ evidence did demonstrate that the unimproved portion of Oakcrest Drive or the right-of-way thereon could be regraded to provide access to emergency [927] vehicles, the petitioners failed to establish any clear right to excavate on the privately owned portion of Oakcrest Drive or on the right-of-way shared in common with others (see, Matter of Newman v Parker, 174 AD2d 783, 784; Novak v Planning Bd., 136 AD2d 610, 611; Goldstein v Zoning Bd. of Appeals, 78 AD2d 538, 539). As a result, the Supreme Court properly declined to annul the determination and remit the matter to the respondents for the issuance of a variance subject to reasonable conditions (see, Matter of Kidd-Kott Constr. Co. v Lillis, 124 AD2d 996, 997; Matter of North Shore Hebrew Academy v Wegman, 105 AD2d 702, 707). We have considered the petitioners’ remaining contentions and find them to be without merit. Pizzuto, J. P., Santucci, Hart and Goldstein, JJ., concur.