Ifrah v. Utschig

—In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Harrison dated January 7, 1999, which, after a hearing, denied the petitioner’s application for four area variances, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Nastasi, J.), entered October 18, 1999, which denied the petition and dismissed the proceeding. Ordered that the judgment is reversed, on the law, with costs, the petition is granted, the determination is annulled, and the matter is remitted to the respondents to issue the area variances. The petitioner owns a parcel of land in the Town of Harrison, Westchester County. The parcel consists of two lots which [459] were merged in 1974 as a result of common ownership. It is located in a residential zoning district which requires one acre of land in order to erect a one-family dwelling. The petitioner sought to subdivide the parcel into two lots as they existed before they merged, which would create two substandard lots. In 1997 he applied for the four area variances required for the subdivision. After a hearing, the respondent Zoning Board of Appeals of the Town of Harrison (hereinafter the ZBA) denied the application, finding, inter alia, that granting the area variances would have a significant impact on and would change the character of the neighborhood. Thereafter, the petitioner commenced the instant proceeding, claiming, among other things, that the determination of the ZBA was arbitrary and capricious. The Supreme Court denied the petition and dismissed the proceeding. We reverse. The petitioner showed that 33 of the 39 lots within 500 feet of his parcel are substandard, and 20 of those 39 lots are smaller than the smaller of the two lots which would be created by subdividing his parcel. The evidence before the ZBA did not support its conclusion that granting the area variances would create a significant impact on and change the character of the neighborhood (see, Matter of Easy Home Program v Trotta, 276 AD2d 553; Matter of Peccoraro v Humenik, 258 AD2d 465; Matter of Eung Lim-Kim v Zoning Bd. of Appeals, 185 AD2d 346; Matter of Rider v Board of Appeals, 172 AD2d 673). Under these circumstances, the denial of the application is not supported by substantial evidence in the record, and the ZBA abused its discretion in denying the area variances (see, Matter of Cassano v Zoning Bd. of Appeals, 263 AD2d 506; Matter of Goldsmith v Bishop, 264 AD2d 775). Therefore, the judgment is reversed, the petition is granted, the determination denying the area variances is annulled, and the matter is remitted to the respondents to issue the area variances (see, Matter of Cassano v Zoning Bd. of Appeals, supra; Matter of Goldsmith v Bishop, supra). S. Miller, J. P., Friedmann and Florio, JJ„, concur.