
    [774 NE2d 732, 746 NYS2d 667]
    In the Matter of Philippe Ifrah, Respondent, v W. Charles Utschig, Jr., et al., Appellants.
    Argued May 29, 2002;
    decided July 1, 2002
    
      POINTS OF COUNSEL
    
      Jonathan D. Kraut, Village Attorney, Harrison (Joseph L. Latwin of counsel), for appellants.
    I. The determination of the court below that the affected “neighborhood” was only properties within 500 feet is without basis. (DJL Rest. Corp. v City of New York, 96 NY2d 91; Stringfellow’s of N.Y. v City of New York, 91 NY2d 382.) II. Judicial review of the Zoning Board of Appeals’ exercise of discretion is extremely limited. (Matter of New York Botanical Garden v Board of Stds. & Appeals of City of N.Y., 91 NY2d 413; Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98; Matter of Fuhst v Foley, 45 NY2d 441; Matter of SoHo Alliance v New York City Bd. of Stds. & Appeals, 95 NY2d 437; Matter of Khan v Zoning Bd. of Appeals of Vil. of Irvington, 87 NY2d 344; Matter of Cowan v Kern, 41 NY2d 591; Matter of Sasso v Osgood, 86 NY2d 374; Tetra Bldrs. v Scheyer, 251 AD2d 589; Matter of Toys “R” Us v Silva, 89 NY2d 411; Matter of Stork Rest. v Boland, 282 NY 256.) III. The court below erred in determining the Zoning Board of Appeals’ decision was not supported by substantial evidence and was arbitrary and capricious. (Matter of Lahey v Kelly, 71 NY2d 135; Matter of Frishman v Schmidt, 61 NY2d 823; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; People ex rel. Vega v Smith, 66 NY2d 130; Matter of Purdy v Kreisberg, 47 NY2d 354; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309; Matter of Khan v Zoning Bd. of Appeals of Vil. of Irvington, 87 NY2d 344; Matter of Fischer v Markowitz, 166 AD2d 444; Matter of Sasso v Osgood, 86 NY2d 374; Matter of Stewart v Ferris, 236 AD2d 767.)
    
      Phillip A. Grimaldi, Jr., Harrison, for respondent. I. The area considered by the court below in rendering its decision was correct and appropriate.
    
      (Matter of Rider v Board of Appeals of Town of Islip, 172 AD2d 673; Matter of Point Lookout Civic Assn. v Zoning Bd. of Appeals of Town of Hempstead, 112 Misc 2d 263; Matter of Riklis v Board of Zoning Appeals of Town of Hempstead, 243 AD2d 482; Matter of Krueger v Zoning Bd. of Appeals of Town of Niskayuna, 48 AD2d 734; Matter of Cassano v Zoning Bd. of Appeals of Inc. Vil. of Bayville, 263 AD2d 506; Matter of Shaughessy v Roth, 204 AD2d 333; Matter of Filangeri v Foster, 257 AD2d 895; Matter of Frank v Scheyer, 
      227 AD2d 558; Matter of Buckley v Amityville Vil. Clerk, 264 AD2d 732; Matter of Sautner v Amster, 284 AD2d 540.) II. Judicial review of a zoning board’s exercise of its discretion is not extremely limited. (Matter of Fuhst v Foley, 45 NY2d 441; Matter of Sasso v Osgood, 86 NY2d 374; Matter of Tetra Bldrs. v Scheyer, 251 AD2d 589; Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86; Matter of Sautner v Amster, 284 AD2d 540; Matter of Mirante v Mammina, 276 AD2d 489; Matter of Easy Home Program v Trotta, 276 AD2d 553; Matter of Buckley v Amityville Vil. Clerk, 264 AD2d 732; Matter of Witzl v Zoning Bd. of Appeals of Town of Berne, 256 AD2d 775; Matter of Lazzara v Kern, 269 AD2d 449.) III. There was no substantial evidence to support the Board’s decision. (Matter of Toys “R” Us v Silva, 89 NY2d 411; Matter of Necker Pottick, Fox Run Woods Bldrs. Corp. v Duncan, 251 AD2d 333; Matter of Witzl v Zoning Bd. of Appeals of Town of Berne, 256 AD2d 775; Matter of Wilson v Town of Mohawk, 246 AD2d 762; Matter of Marcello v Humenik, 222 AD2d 677; Matter of Sautner v Amster, 284 AD2d 540; Matter of Josato, Inc. v Wright, 288 AD2d 384; Matter of Wachsberger v Michalis, 19 Misc 2d 909, 18 AD2d 921; Matter of Niceforo v Zoning Bd. of Appeals of Town of Huntington, 147 AD2d 483; Matter of Vilardi v Roth, 192 AD2d 662.)
   OPINION OF THE COURT

Levine, J.

In 1996, petitioner Philippe Ifrah purchased a 0.77-acre parcel of land on Penimore Drive in the Town of Harrison, Westchester County. A single-family residence constructed in 1928 sits on the southern portion of the parcel. The Town’s 1928 subdivision map originally designated the property as two separate lots. Those lots merged in 1974 as a result of common ownership. Some time after the original subdivision but prior to the merger, the Town adopted a zoning ordinance designating the area in which the parcel is located as a residential district, which requires one acre of land and a 100-foot minimum lot width for the construction of a one-family dwelling.

Shortly after purchasing the property, petitioner sought to subdivide the already nonconforming parcel into two separate lots. According to petitioner’s plan, the lot containing the existing dwelling would be approximately 0.40 of an acre with a width of 93.13 feet, and the second lot, on which a new dwelling would be constructed, would be approximately 0.37 of an acre with a width of 79.16 feet. Petitioner applied for the four area variances required for the subdivision.

After a public hearing, site visit and consideration of all the statutory factors set forth in Town Law § 267-b, respondent Zoning Board of Appeals of the Town of Harrison unanimously denied petitioner’s application. The Board held that the granting of the variance would create two substantially substandard lots, both deviating from the one-acre requirement by 60% or more. The Board also held that the variances would have a significant impact upon, and change the character of, the neighborhood.

Petitioner commenced this CPLR article 78 proceeding challenging the Board’s determination. Supreme Court denied the petition and dismissed the proceeding, concluding that the Board’s determination was rational and supported by the record. The Appellate Division, with one Justice dissenting, reversed Supreme Court’s judgment, granted the petition, annulled the Board’s determination and remitted the matter to the Board for issuance of the area variances (282 AD2d 458 [2001]). The Appellate Division held that the Board’s determination was not supported by substantial evidence. It based its holding solely on the facts that 33 of the 39 lots within 500 feet of petitioner’s parcel were substandard, and 20 of those 39 lots were smaller than the smaller of the two lots that would be created by the subdivision.

In dissent, Justice Krausman concluded that the majority failed to take into account the evidence supporting the numerous other factors considered by the Board in denying the variances, and that the Board’s determination was rational and supported by substantial evidence. We agree and now reverse.

In making its determination whether to grant an area variance, a zoning board of appeals is required, pursuant to Town Law § 267-b (3), to engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted (see Matter of Sasso v Osgood, 86 NY2d 374, 382, 384 [1995]). The zoning board is also required to consider whether (1) an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) the benefit sought by the applicant can be achieved by some other method, feasible for the applicant to pursue, other than an area variance; (3) the requested area variance is substantial; (4) the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) the alleged difficulty was self-created. Petitioner is correct that the last factor is not dispositive. Neither, however, is it irrelevant.

Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion (see Matter of Fuhst v Foley, 45 NY2d 441, 444 [1978]). Thus, a determination of a zoning board should be sustained upon judicial review if it has a rational basis and is supported by substantial evidence (see Sasso, 86 NY2d at 384 n 2; see also Matter of Doyle v Amster, 79 NY2d 592, 596 [1992]; Fuhst, 45 NY2d at 444). Although scientific or other expert testimony is not required in every case to support a zoning board’s determination, the board may not base its decision on generalized community objections (see Matter of Twin County Recycling Corp. v Yevoli, 90 NY2d 1000, 1002 [1997]).

In this case, the Board’s determination is supported by more than the generalized objections of neighbors. The Board’s conclusion that the proposed variances would have a detrimental impact on the character of the neighborhood is supported by objective and largely undisputed factual evidence in the form of oral and written testimony by neighbors with actual knowledge of the conditions along Fenimore Drive, corroborated by the documentary evidence supplied to the Board.

The Appellate Division majority essentially held that all of the neighborhood character impact evidence the Board (and the dissenter) relied upon was trumped by the fact that most of the lots along Fenimore Drive did not meet the up-zoned one-acre area requirement. Lot size, however, is not the only relevant factor when considering impacts on the character of a neighborhood. Here, there was evidence of the distinctive neoTudor architectural style of the houses lining Fenimore Drive, popular when those homes were built more than 60 years ago, which would be disturbed by the addition of a modern home on the subdivision. There was also testimony that 50-foot average spacing between the existing residences and the frontages on the street give the impression of larger lots. These observations were corroborated by the maps submitted to the Board. Petitioner’s site plan shows, by contrast, that spacing between the existing and proposed residences would be only about 40 feet.

Record evidence also supports the Board’s conclusion that the variance would have other detrimental impacts on the neighborhood. Notably, there was particularized evidence of traffic flow and safety, and parking impacts. The proposed subdivision is located at the intersection of Fenimore Drive and Cooper Place, and immediately adjacent to a point where Fenimore Drive splits into two narrow roads, Fenimore Drive East and Fenimore Drive West. The site is also located at the confluence of several existing driveways. The proposed driveway leading from the lot on which the new house would be built has a steep upward slope. These undisputed facts, corroborated by the maps, support the concerns expressed to the Board that the variances would exacerbate the already difficult traffic and parking situation along Fenimore Drive, including blind turns and the difficulty snow plows have negotiating the narrow streets. Based upon this objective evidence, the Board could rationally conclude that the proposed subdivision would have substantial adverse impacts on the neighborhood.

As also noted by the dissent below, ample record evidence supports several other statutory factors relied upon by the Board. The area variances sought — of at least 60% — are undisputably substantial. Moreover, petitioner’s difficulty was self-created — the existing property already had a nonconforming lot size and petitioner was aware of the zoning requirements when he bought the property. Finally, petitioner would not be denied the ability to make productive use of his property, which already contains a habitable single-family residence. Rather, the benefit petitioner seeks to have weighed against the detriment to the neighborhood is his realization of a profit by constructing a second house on the subdivided vacant lot if the variances are granted. Based upon the entire record before it, and balancing all the factors established, the Board could rationally conclude that the detriment the proposed subdivision posed to the neighborhood outweighed the benefit sought by petitioner, and its determination denying the requested variances was not arbitrary or capricious.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Chief Judge Kaye and Judges Smith, Ciparick, Wesley, Rosenblatt and Graffeo concur.

Order reversed, etc.  