Opinion
Argued October 9, 2001.
November 13, 2001.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Brookhaven dated July 22, 1999, which, after a hearing, granted the amended application of Lawrence Plesh for a side yard variance, the appeal is from a judgment of the Supreme Court, Suffolk County (Jones, J.), entered June 6, 2000, which granted the petition and annulled the determination.
Annette Eaderesto, Town Attorney, Medford, N.Y. (Barbara M. Wiplush of counsel), for appellants.
Lamb Barnosky, LLP, Melville, N.Y. (Robert H. Cohen of counsel), for petitioner-respondent.
Before: LAWRENCE J. BRACKEN, P.J., LEO F. McGINITY, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, JJ.
ORDERED that the judgment is reversed, on the law, with costs, the determination is confirmed, and the petition is dismissed on the merits.
The Zoning Board of Appeals of the Town of Brookhaven (hereinafter the ZBA) granted the amended application of the respondent Lawrence Plesh for a side yard variance. The petitioner commenced this CPLR article 78 proceeding seeking to review that determination, claiming, inter alia, that the ZBA failed to satisfy a condition precedent under General Municipal Law § 239-m that the notice of the public hearing was defective, and that the ZBA failed to properly consider the factors under Town Law § 267-b(3)(b). The Supreme Court granted the petition and annulled the determination.
It is not disputed that the proposed area variance affects real property which is within 500 feet of a county road. Thus, the ZBA was required under General Municipal Law § 239-m, to refer its proposed action to the Suffolk County Planning Commission for review (see, General Municipal Law §§ 239-m[a][v], [3][b][iii]). The ZBA submitted evidence that it complied with this condition precedent (see, General Municipal Law § 239-m[d]); therefore, its determination should not be annulled on that basis (but see, Matter of Zelnick v. Small, 268 A.D.2d 527, 529 ; Matter of Burchetta v. Town Bd. of Town of Carmel, 167 A.D.2d 339, 340-341; Matter of Old Dock Assocs. v. Sullivan, 150 A.D.2d 695, 697).
Moreover, the notice of the public hearing was not defective (see, Brookhaven Code § 85-28; Matter of Cellular Tel. Co. v. Meyer, 200 A.D.2d 743; Fairris v. Town of Washington Planning Bd., 167 A.D.2d 368, 370), and the determination of the ZBA was supported by substantial evidence and was not arbitrary and capricious (see, Matter of Sasso v. Osgood, 86 N.Y.2d 374; Matter of Easy Home Program v. Trotta, 276 A.D.2d 553; Matter of Owens v. Zoning Bd. of Appeals of Town of Islip, 255 A.D.2d 587; Matter of Pawdee v. Bronnes, 242 A.D.2d 334).
BRACKEN, P.J., McGINITY, LUCIANO and FEUERSTEIN, JJ., concur.