SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

256 

CA 15-00501 

PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, CURRAN, AND SCUDDER, JJ.

 

IN THE MATTER OF ELAM SAND & GRAVEL CORP., 

PETITIONER-APPELLANT, 

 

V MEMORANDUM AND ORDER

TOWN OF WEST BLOOMFIELD ZONING BOARD OF 

APPEALS, SUE S. STEWART, NEIGHBORS TO SUPPORT 

WEST BLOOMFIELD, AND CITIZENS TO SUPPORT WEST 

BLOOMFIELD, RESPONDENTS-RESPONDENTS. 

HOPKINS SORGI & ROMANOWSKI PLLC, EAST AURORA (PETER SORGI OF COUNSEL),

FOR PETITIONER-APPELLANT. 

BOYLAN CODE LLP, ROCHESTER (DAVID K. HOU OF COUNSEL), FOR

RESPONDENT-RESPONDENT TOWN OF WEST BLOOMFIELD ZONING BOARD OF APPEALS.

NIXON PEABODY LLP, ROCHESTER (TERENCE L. ROBINSON, JR., OF COUNSEL),

FOR RESPONDENTS-RESPONDENTS SUE S. STEWART, NEIGHBORS TO SUPPORT 

WEST BLOOMFIELD, AND CITIZENS TO SUPPORT WEST BLOOMFIELD.

 

Appeal from a judgment (denominated order) of the Supreme Court,

Ontario County (Craig J. Doran, A.J.), entered November 28, 2014 in a

proceeding pursuant to CPLR article 78. The judgment, inter alia,

dismissed the petition. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs.

Memorandum: Petitioner commenced this CPLR article 78 proceeding

seeking to annul the determination of respondent Town of West

Bloomfield Zoning Board of Appeals (ZBA) denying its application for a

use variance to operate a sand and gravel mine. Contrary to

petitioner’s contention, Supreme Court properly dismissed the petition

upon determining that the denial of the application for a use variance

had a rational basis, and was not arbitrary and capricious.

It is undisputed that, at the time petitioner entered into a

lease with the landowner, mining was a permitted use provided that a

special use permit was obtained. However, before a special use permit

was issued to petitioner, the West Bloomfield Town Board passed a

resolution adopting a moratorium on sand and gravel mining operations

in the Town and ultimately adopted a local law that, inter alia,

prohibited mining in the R-1 Low Density district where the subject

property is located. Petitioner then applied for a use variance. 
-2- 256 

CA 15-00501 

After considering the information provided by petitioner, as well as

that provided by an engineer retained by the ZBA to review the

application and by opponents of the application, the ZBA determined,

inter alia, that petitioner failed to establish three of the four

factors constituting the unnecessary hardship required for the

issuance of a use variance (see Town Law § 267-b [2] [b]). 

Specifically, the ZBA determined that petitioner failed to establish

that the property could not realize a reasonable return with permitted

uses; that the hardship was unique to the property and does not apply

to a substantial portion of the district or neighborhood; and that

issuing the variance would not alter the essential character of the

neighborhood (see id.). 

It is well established that “[c]ourts may set aside a zoning

board determination only where the record reveals that the board acted

illegally or arbitrarily, or abused its discretion, or that it merely

succumbed to generalized community pressure . . . ‘It matters not

whether, in close cases, a court would have, or should have, decided

the matter differently. The judicial responsibility is to review

zoning decisions but not, absent proof of arbitrary and unreasonable

action, to make them’ ” (Matter of Pecoraro v Board of Appeals of Town

of Hempstead, 2 NY3d 608, 613). We conclude that the court properly

determined that the ZBA’s determination has a rational basis and is

not arbitrary and capricious (see CPLR 7803 [3]). Contrary to

petitioner’s contention, we further conclude that the determination is

not affected by an error of law inasmuch as the ZBA properly applied

the factors constituting unnecessary hardship set forth in Town Law 

§ 267-b (2) (b). We note that, although petitioner provided expert

testimony with respect to those factors, “it is the ‘sole province of

the ZBA . . . as administrative factfinder’ to resolve issues of

credibility” (Matter of HoliMont, Inc. v Village of Ellicottville

Zoning Bd. of Appeals, 112 AD3d 1315, 1315). In view of our

determination that the ZBA’s determination with respect to Town Law 

§ 267-b (2) (a) was not affected by an error of law, we need not

address petitioner’s contention concerning the Town Code. 

Entered: March 25, 2016 Frances E. Cafarell

Clerk of the Court