Ifrah v. Utschig, 774 N.E.2d 732 (NY 2002). · Go Syfert
Ifrah v. Utschig, 774 N.E.2d 732 (NY 2002). Cases Citing This Book View Copy Cite
457 citation events (457 in the last 25 years) across 8 distinct courts.
Strongest positive: Matter of Nemeth v. K-Tooling (nyappdiv, 2026-03-05)
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (rule) Matter of Nemeth v. K-Tooling
N.Y. App. Div. · 2026 · confidence medium
Ultimately, local zoning boards have "broad discretion" in considering variance applications, and our review "is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion" ( Matter of Ifrah v Utschig , 98 NY2d 304, 308 [2002]; accord Matter of 80 Woodland Ave, LLC v Village of Catskill , 240 AD3d 1102 , 1103 [3d Dept 2025]).
discussed Cited as authority (rule) Matter of Williams v. Town of Lake Luzerne Zoning Bd. of Appeals (2×)
N.Y. App. Div. · 2025 · confidence medium
Nor did respondent or Supreme Court address the clear benefit to petitioner of maintaining her garage, as compared to the prospect of having to remove the structure and the attendant financial loss ( compare Matter Ifrah v Utschig , 98 NY2d 304, 309 [2002]).
discussed Cited as authority (rule) Matter of 80 Woodland Ave, LLC v. Village of Catskill
N.Y. App. Div. · 2025 · confidence medium
It is well settled that "[l]ocal 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" ( Matter of Ifrah v Utschig , 98 NY2d 304, 308 [2002]; see Matter of Freepoint Solar LLC v Town of Athens Zoning Bd. of Appeals , 234 AD3d 127 , 130 [3d Dept 2024], lv denied 43 NY3d 907 [2025]).
discussed Cited as authority (rule) Matter of Socha v. Town of Starkey
N.Y. App. Div. · 2025 · confidence medium
Where there is substantial evidence in the record to support the rationality of the ZBA's determination, the determination should be affirmed upon judicial review ( see Matter of Ifrah v Utschig , 98 NY2d 304, 308 [2002]; Matter of Sasso v Osgood , 86 NY2d 374 , 384 n 2 [1995]; Matter of Expressview Dev. , Inc. v Town of Gates Zoning Bd. of Appeals , 147 AD3d 1427, 1428-1429 [4th Dept 2017]).
discussed Cited as authority (rule) Matter of Franklin Sq. Realty Assoc., LLC v. Board of Appeals of the Town of Hempstead
N.Y. App. Div. · 2025 · confidence medium
"A determination of a zoning board should be sustained upon judicial review if it has a rational basis and the record contains sufficient evidence to support the rationality of the determination" ( Matter of White Birch Circle Realty Corp. v DeChance , 212 AD3d 729, 730 [internal quotation marks omitted]; see Matter of Pecoraro v Board of Appeals of Town of Hempstead , 2 NY3d 608, 613; Matter of Ifrah v Utschig , 98 NY2d 304, 308).
discussed Cited as authority (rule) Matter of 16 Main St. Prop., LLC v. Village of Geneseo
N.Y. App. Div. · 2024 · confidence medium
In particular, the ZBA concluded that the increase from three tenants, as permitted in a boardinghouse under the Zoning Ordinance, to eight was significant and, inter alia, would cause more noise and commotion, affect property values nearby, and lead to an increase in applications by landlords for area variances allowing for the housing of more students in smaller places ( see Matter of Ifrah v Utschig , 98 NY2d 304, 307-308 [2002]; see also Matter of DeGroote v Town of Greece Bd. of Zoning Appeals , 35 AD3d 1177 , 1178 [4th Dept 2006]).
discussed Cited as authority (rule) Matter of Source Renewables, LLC v. Town of Cortlandville Zoning Bd. of Appeals
N.Y. App. Div. · 2023 · confidence medium
"Local zoning boards have broad discretion in considering applications for variances, and judicial review [of such determinations] is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion" ( Matter of Ifrah v Utschig[*3] , 98 NY2d 304, 308 [2002] [citation omitted]; see Matter of Sasso v Osgood , 86 NY2d 374, 384 , 384 n 2 [1995]).
discussed Cited as authority (rule) Matter of Hoots v. Town of Rochester Zoning Bd. of Appeals
N.Y. App. Div. · 2022 · confidence medium
When assessing an area variance application, "a zoning board of appeals is required to weigh the benefit to the applicants against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted, while also considering five statutory factors" ( Matter of Wen Mei Lu v City of Saratoga Springs , 162 AD3d 1291 , 1293 [2018]; see Town Law § 267-b [3] [b]; Matter of Ifrah v Utschig , 98 NY2d 304, 307-308 [2002]).
discussed Cited as authority (rule) Matter of Buckley v. Zoning Bd. of Appeals of City of Geneva
N.Y. App. Div. · 2020 · confidence medium
Where there is substantial evidence in the record to support the rationality of the ZBA's determination, the determination should be affirmed upon judicial review ( see Matter of Ifrah v Utschig , 98 NY2d 304, 308 [2002]).
discussed Cited as authority (rule) Matter of 209 Hudson St., LLC v. City of Ithaca Bd. of Zoning Appeals
N.Y. App. Div. · 2020 · confidence medium
When assessing petitioner's area variance application, respondent was required to "weigh[] the benefit[s] to [petitioner] against the detriment to the health, safety and welfare of the neighborhood or community if the [requested] variance is granted ( Matter of Ifrah v Utschig , 98 NY2d 304, 307 [2002]; see Matter of Wen Mei Lu v City of Saratoga Springs , 162 AD3d 1291 , 1293 [2018]).
discussed Cited as authority (rule) Matter of Campaign for Buffalo History Architecture & Culture, Inc. v. Zoning Bd. of Appeals of City of Buffalo
N.Y. App. Div. · 2019 · confidence medium
Where there is substantial evidence in the record to support the rationality of the ZBA's determination, the determination should be affirmed upon judicial review ( see Matter of Ifrah v Utschig , 98 NY2d 304, 308 [2002]; Matter of Sasso v Osgood , 86 NY2d 374 , 384 n 2 [1995]; Matter of Expressview Dev., Inc. v Town of Gates Zoning Bd. of Appeals , 147 AD3d 1427, 1428-1429 [4th Dept 2017]).
examined Cited as authority (rule) Matter of Feinberg- Smith Assoc., Inc. v. Town of Vestal Zoning Bd. of Appeals (3×) also: Cited "see"
N.Y. App. Div. · 2018 · confidence medium
A determination of a zoning board should be sustained on judicial review if it has a rational basis" and is supported by the record ( Matter of Pecoraro v Board of Appeals of Town of Hempstead , 2 NY3d 608 , 613 [2004] [citations omitted]; see CPLR 7803 [3]; Matter of Ifrah v Utschig , 98 NY2d 304, 308 [2002]; Matter of Wen Mei Lu v City of Saratoga Springs , 162 AD3d [*2] 1291, 1292 [2018]; Matter of Russo v City of Albany Zoning Bd. , 78 AD3d 1277 , 1279 [2010]).
discussed Cited as authority (rule) Matter of Wen Mei Lu v. City of Saratoga Springs
N.Y. App. Div. · 2018 · confidence medium
"The law is well settled that 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" ( Matter of Rehabilitation Support Servs., Inc. v City of Albany Bd. of Zoning Appeals , 140 AD3d 1424, 1425 [2016] [internal quotation marks, brackets and citations omitted]; see Matter of Vomero v City of New York , 13 NY3d 840, 841 [2009]; Matter of Ifrah v Utschig , 98 NY2d 304, 308 [2002]).
discussed Cited as authority (rule) Matter of Cooperstown Eagles, LLC v. Village of Cooperstown Zoning Bd. of Appeals
N.Y. App. Div. · 2018 · confidence medium
It is well-settled that "[l]ocal 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" ( Matter of Ifrah v Utschig , 98 NY2d 304, 308 [2002]; accord Matter of Rehabilitation Support Servs., Inc. v City of Albany Bd. of Zoning Appeals , 140 AD3d 1424, 1425 [2016]; Matter of Schaller v Town of New Paltz Zoning Bd. of Appeals , 108 AD3d 821 , 824 [2013]).
discussed Cited as authority (rule) Matter of Freck v. Town of Porter
N.Y. App. Div. · 2018 · confidence medium
With respect to the area variance granted to the Fleckenstein respondents' project with regard to "yard and bulk" requirements ( see Code § 200-8 [B]), the ZBA was required to weigh the benefit to the applicants of granting the variance against any detriment to the health, safety and welfare of the neighborhood or community affected thereby, taking into account the five factors set forth in Town Law § 267-b (3) (b) ( see Matter of Ifrah v Utschig , 98 NY2d 304, 307-308 [2002]; Matter of Sasso v Osgood , 86 NY2d 374, 382 [1995]), and we conclude that the ZBA did so here.
discussed Cited as authority (rule) Matter of DeCarr v. Zoning Bd. of Appeals for Town of Verona
N.Y. App. Div. · 2017 · confidence medium
We conclude that the determination that the Applicants established the existence of a gap in service, that the location of the proposed facility would remedy that gap, and that the facility presented a minimal intrusion “has a rational basis and is supported by substantial evidence” (Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; see Matter of Expressview Dev., Inc. v Town of Gates Zoning Bd. of Appeals, 147 AD3d 1427, 1428-1429 [2017]).
discussed Cited as authority (rule) Matter of Ramapo Pinnacle Props., LLC v. Village of Airmont Planning Bd.
N.Y. App. Div. · 2016 · confidence medium
A local planning board has broad discretion in reaching its determination on applications such as the petitioner’s, 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 Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Davies Farm, LLC v Planning Bd. of Town of Clarkstown, 54 AD3d 757, 758 [2008]; Matter of Gallo v Rosell, 52 AD3d 514, 515 [2008]; Matter of Halperin v City of New Rochelle, 24 AD3d 768 [2005]).
discussed Cited as authority (rule) Matter of Rehabilitation Support Services, Inc. v. City of Albany Board of Zoning Appeals (2×)
N.Y. App. Div. · 2016 · confidence medium
“The law is well settled that ‘[l]ocal 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’ ” (Matter of Russo v City of Albany Zoning Bd., 78 AD3d 1277, 1279 [2010], quoting Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; accord Matter of Schaller v Town of New Paltz Zoning Bd. of Appeals, 108 AD3d 821 , 824 [2013]).
discussed Cited as authority (rule) Matter of DeFeo v. Zoning Bd. of Appeals of Town of Bedford
N.Y. App. Div. · 2016 · confidence medium
The parties appeal and cross-appeal from the portions of the court’s judgment adverse to them. “[A] determination of a zoning board should be sustained upon judicial review if it has a rational basis and is supported by substantial evidence” (Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]).
discussed Cited as authority (rule) Matter of Fortunato v. Town of Hempstead Bd. of Appeals
N.Y. App. Div. · 2015 · confidence medium
“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” (Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; see Matter of Towers v Weiss, 131 AD3d 621, 622 [2015]; Matter of Borrok v Town of Southampton, 130 AD3d 1024 [2015]).
discussed Cited as authority (rule) Matter of Towers v. Weiss
N.Y. App. Div. · 2015 · confidence medium
“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” (Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; see Matter of Matejko v Board of Zoning Appeals of Town of Brookhaven, 77 AD3d 949, 949 [2010]). “[A] zoning board’s determination should be sustained on judicial review if it has a rational basis and is supported by evidence in the record” (Matter of Traendly v Zoning Bd. of Appeals of Town of Southold, 127 AD3d 12…
discussed Cited as authority (rule) Borrok v. Town of Southampton
N.Y. App. Div. · 2015 · confidence medium
In determining whether to grant an application for an area variance, a zoning board is required 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 Town Law § 267-b [3] [b]; see also Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 612 ; Matter of Ifrah v Utschig, 98 NY2d 304, 307-308 [2002]) Here, the Zoning Board engaged in the required balancing test and considered the relevant statutory factors (see Matter of Pecoraro v Board of Ap…
discussed Cited as authority (rule) Borrok v. Town of Southampton
N.Y. App. Div. · 2015 · confidence medium
In determining whether to grant an application for an area variance, a zoning board is required 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 Town Law § 267-b [3] [b]; see also Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 612 ; Matter of Ifrah v Utschig, 98 NY2d 304, 307-308 [2002]) Here, the Zoning Board engaged in the required balancing test and considered the relevant statutory factors (see Matter of Pecoraro v Board of Ap…
discussed Cited as authority (rule) Ostojic v. Gee
N.Y. App. Div. · 2015 · confidence medium
A local planning board has broad discretion in deciding applications for subdivision approval (see Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Fairway Manor, Inc. v Bertinelli, 81 AD3d 821, 822-823 [2011]; Matter of InTowne Shopping Ctrs., Co. v Planning Bd. of the Town of Brookhaven, 73 AD3d 925, 926 [2010]; Matter of Kearney v Kita, 62 AD3d 1000, 1001 [2009]; Matter of Davies Farm, LLC v Planning Bd. of Town of Clarkstown, 54 AD3d 757, 758 [2008]).
discussed Cited as authority (rule) Ostojic v. Gee
N.Y. App. Div. · 2015 · confidence medium
A local planning board has broad discretion in deciding applications for subdivision approval (see Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Fairway Manor, Inc. v Bertinelli, 81 AD3d 821, 822-823 [2011]; Matter of InTowne Shopping Ctrs., Co. v Planning Bd. of the Town of Brookhaven, 73 AD3d 925, 926 [2010]; Matter of Kearney v Kita, 62 AD3d 1000, 1001 [2009]; Matter of Davies Farm, LLC v Planning Bd. of Town of Clarkstown, 54 AD3d 757, 758 [2008]).
discussed Cited as authority (rule) Matter of Marina's Edge Owner's Corp. v. City of New Rochelle Zoning Bd. of Appeals
N.Y. App. Div. · 2015 · confidence medium
Local zoning boards have broad discretion in considering an application for a variance, and judicial review is limited to ascertaining whether the determination of the board was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 771 [2005]).
discussed Cited as authority (rule) Matter of L & M Graziose, LLP v. City of Glen Cove Zoning Bd. of Appeals
N.Y. App. Div. · 2015 · confidence medium
Local zoning boards have broad discretion in considering applications for area variances (see Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Caspian Realty, Inc. v Zoning Bd. of Appeals of Town of Greenburgh, 68 AD3d 62, 67 [2009]), and judicial review is limited to determining whether “ ‘the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure’ ” (Matter of Haberman v Zoning Bd. of Appeals of Town of E.
discussed Cited as authority (rule) People, Inc. v. City of Tonawanda Zoning Board of Appeals
N.Y. App. Div. · 2015 · confidence medium
It is well settled that the determination whether to grant or deny an application for an area variance is committed to the broad discretion of the applicable local zoning board (see Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Shokrian v Zoning Bd. of Appeals of City of Long Beach, 32 AD3d 961, 961 [2006]).
discussed Cited as authority (rule) People, Inc. v. City of Tonawanda Zoning Board of Appeals
N.Y. App. Div. · 2015 · confidence medium
It is well settled that the determination whether to grant or deny an application for an area variance is committed to the broad discretion of the applicable local zoning board (see Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Shokrian v Zoning Bd. of Appeals of City of Long Beach, 32 AD3d 961, 961 [2006]).
discussed Cited as authority (rule) Matter of The Fund For Lake George, Inc. v. Town of Queensbury Zoning Board of Appeals
N.Y. App. Div. · 2015 · confidence medium
While the statute contains five factors that boards must consider {see Town Law § 267-b [3] [b]), zoning boards have discretion in deciding area variance applications and courts will only disturb a board’s decision if it is “illegal, arbitrary or an abuse of discretion” (Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; accord Matter of Russo v City of Albany Zoning Bd., 78 AD3d 1277, 1279 [2010]).
discussed Cited as authority (rule) Matter of John Hatgis, LLC v. DeChance
N.Y. App. Div. · 2015 · confidence medium
Contrary to the petitioner’s contention, the ZBA’s determination that the requested variance was substantial was not arbitrary and capricious (see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 614 ; Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of JSB Enters., LLC v Wright, 81 AD3d 955 [2011]).
discussed Cited as authority (rule) Matter of M&V 99 Franklin Realty Corp. v. Weiss (2×) also: Cited "see"
N.Y. App. Div. · 2015 · confidence medium
A variance determination of a zoning board should be sustained if it has a rational basis and is not arbitrary and capricious (see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 613 ; Matter of Ifrah v Utschig, 98 NY2d at 308).
discussed Cited as authority (rule) Mimassi v. Town of Whitestown Zoning Board of Appeals
N.Y. App. Div. · 2015 · confidence medium
Respondent “was required to weigh the benefit to [petitioner] of granting the variancel ] against any detriment to the health, safety and welfare of the neighborhood or community affected thereby, taking into account the five factors set forth in Town Law § 267-b (3) (b)” (Matter of Conway v Town of Irondequoit Zoning Bd. of Appeals, 38 AD3d 1279, 1279-1280 [2007]; see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 612-613 [2004]; Matter of Ifrah v Utschig, 98 NY2d 304, 307-308 [2002]).
discussed Cited as authority (rule) Mimassi v. Town of Whitestown Zoning Board of Appeals
N.Y. App. Div. · 2015 · confidence medium
Respondent “was required to weigh the benefit to [petitioner] of granting the variancel ] against any detriment to the health, safety and welfare of the neighborhood or community affected thereby, taking into account the five factors set forth in Town Law § 267-b (3) (b)” (Matter of Conway v Town of Irondequoit Zoning Bd. of Appeals, 38 AD3d 1279, 1279-1280 [2007]; see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 612-613 [2004]; Matter of Ifrah v Utschig, 98 NY2d 304, 307-308 [2002]).
discussed Cited as authority (rule) Matter of Slonim v. Town of E. Hampton Zoning Bd. of Appeals
N.Y. App. Div. · 2014 · confidence medium
Thus, the Zoning Board determination at issue in this proceeding may be set aside only if the Zoning Board acted illegally, arbitrarily, abused its discretion, or succumbed to generalized community opposition, and must be sustained if the determination has a rational basis (see CPLR 7803 [3]; Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d at 613 ; Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Pell v Board of Educ. of Union Free School Dist.
discussed Cited as authority (rule) Christian Airmen, Inc. v. Town of Newstead Zoning Board of Appeals
N.Y. App. Div. · 2014 · confidence medium
While we agree with petitioner that the ZBA “may not base its decision on generalized community objections,” we do not perceive any indication in the record that the ZBA based its determination on such objections (Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]).
discussed Cited as authority (rule) Christian Airmen, Inc. v. Town of Newstead Zoning Board of Appeals
N.Y. App. Div. · 2014 · confidence medium
While we agree with petitioner that the ZBA “may not base its decision on generalized community objections,” we do not perceive any indication in the record that the ZBA based its determination on such objections (Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]).
discussed Cited as authority (rule) Green 2009, Inc. v. Weiss
N.Y. App. Div. · 2014 · confidence medium
Judicial review is generally limited to ascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Fuhst v Foley, 45 NY2d 441, 444 [1978]; Matter of Kabro Assoc., LLC v Town of Islip Zoning Bd. of Appeals, 95 AD3d at 1119 ; Matter of Mejias v Town of Shelter Is.
discussed Cited as authority (rule) Green 2009, Inc. v. Weiss
N.Y. App. Div. · 2014 · confidence medium
Judicial review is generally limited to ascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Fuhst v Foley, 45 NY2d 441, 444 [1978]; Matter of Kabro Assoc., LLC v Town of Islip Zoning Bd. of Appeals, 95 AD3d at 1119 ; Matter of Mejias v Town of Shelter Is.
discussed Cited as authority (rule) Schaller v. Town of New Paltz Zoning Board of Appeals
N.Y. App. Div. · 2013 · confidence medium
“Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determinating whether the action taken by the board was illegal, arbitrary or an abuse of discretion” (Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002] [citation omitted]; accord Matter of Russo v City of Albany Zoning Bd., 78 AD3d 1277, 1279 [2010]).
discussed Cited as authority (rule) Schaller v. Town of New Paltz Zoning Board of Appeals
N.Y. App. Div. · 2013 · confidence medium
“Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determinating whether the action taken by the board was illegal, arbitrary or an abuse of discretion” (Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002] [citation omitted]; accord Matter of Russo v City of Albany Zoning Bd., 78 AD3d 1277, 1279 [2010]).
discussed Cited as authority (rule) Barros v. Town of Ossining Zoning Board of Appeals
N.Y. App. Div. · 2013 · confidence medium
“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” (.Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; see Matter of Matejko v Board of Zoning Appeals of Town of Brookhaven, 77 AD3d 949, 949 [2010]).
discussed Cited as authority (rule) Barros v. Town of Ossining Zoning Board of Appeals
N.Y. App. Div. · 2013 · confidence medium
“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” (.Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; see Matter of Matejko v Board of Zoning Appeals of Town of Brookhaven, 77 AD3d 949, 949 [2010]).
discussed Cited as authority (rule) Davydov v. Mammina
N.Y. App. Div. · 2012 · confidence medium
“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” (Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; see Matter of Halperin v City of New Rochelle, 24 AD3d 768, 771 [2005]).
discussed Cited as authority (rule) Davydov v. Mammina
N.Y. App. Div. · 2012 · confidence medium
“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” (Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; see Matter of Halperin v City of New Rochelle, 24 AD3d 768, 771 [2005]).
discussed Cited as authority (rule) Jacoby Real Property, LLC v. Malcarne
N.Y. App. Div. · 2012 · confidence medium
“In making a determination as to whether to grant an area variance, local zoning boards are required by 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’ ” (id. at 856, quoting Matter of Ifrah v Utschig, 98 NY2d 304, 307 [2002]).
discussed Cited as authority (rule) Jacoby Real Property, LLC v. Malcarne
N.Y. App. Div. · 2012 · confidence medium
“In making a determination as to whether to grant an area variance, local zoning boards are required by 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’ ” (id. at 856, quoting Matter of Ifrah v Utschig, 98 NY2d 304, 307 [2002]).
discussed Cited as authority (rule) Levine v. Village of Island Park Board of Zoning Appeals
N.Y. App. Div. · 2012 · confidence medium
Additionally, the Supreme Court correctly concluded that the BZA’s determination granting the application for area variances was not illegal, had a rational basis, and was not arbitrary and capricious (see Village Law § 7-712-b [3] [b]; Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Sasso v Osgood, 86 NY2d 374, 384 [1995]; Matter of Matejko v Board of Zoning Appeals of Town of Brookhaven, 77 AD3d 949, 949 [2010]; Matter of Monroe Beach, Inc. v Zoning Bd. of Appeals of City of Long Beach, N.Y., 71 AD3d 1150, 1150 [2010]).
discussed Cited as authority (rule) Kabro Associates, LLC v. Town of Islip Zoning Board of Appeals
N.Y. App. Div. · 2012 · confidence medium
Hampton, 83 AD3d 935, 937 [2011], quoting Matter of Brancato v Zoning Bd. of Appeals of City of Yonkers, N.Y., 30 AD3d 515, 515 [2006]; see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]).
discussed Cited as authority (rule) Nathan v. Zoning Board of Appeals of Village of Russell Gardens
N.Y. App. Div. · 2012 · confidence medium
Local zoning boards have broad discretion in considering applications for area variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Ifrah v Utschig, 98 NY2d 304, 308 [2002]; Matter of Wallach v Wright, 91 AD3d 881 [2012]).
In the Matter of Philippe Ifrah
v.
W. Charles Utschig, Jr.
New York Court of Appeals.
Jul 1, 2002.
774 N.E.2d 732
POINTS OF COUNSEL, Jonathan D. Kraut, Village Attorney, Harrison (Joseph L. Latwin of counsel), for appellants., Phillip A. Grimaldi, Jr., Harrison, for respondent. I. The area considered by the court below in rendering its decision was correct and appropriate.
Levine.
Cited by 552 opinions  |  Published

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[*307] 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;[*308] (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.

[*309] 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.