Farrell v. Johnson , 697 N.Y.S.2d 900 ( 1999 )

—Judgment unanimously reversed on the law without costs and petition dismissed. Memorandum: Supreme Court erred in granting the petition and annulling the determination of respondent Zoning Board of Appeals of the Town of Kiantone (ZBA), which granted intervenor’s application for use and area variances to permit the construction of a cellular telephone cell site. The determination of the ZBA is entitled to great deference and must be sustained where, as here, it has a rational basis and is supported by substantial evidence (see, Matter of Village of Honeoye Falls v Town of Mendon Zoning Bd. of Appeals, 237 AD2d 929; Matter of Geampa v Walck [appeal No. 2], 222 AD2d 1072). Intervenor presented evidence that the proposed construction would not interfere with electrical appliances or devices, diminish property values or create health risks. In addition, intervenor “established that the erection of the cell site would enable it to remedy gaps in its service area that currently prevent it from providing adequate service to its customers in the [Kiantone] area” (Matter of Cellular Tel. Co. v Rosenberg, 82 NY2d 364, 373-374).

The court also erred in directing the ZBA to make a new determination of significance pursuant to ECL article 8 (State Environmental Quality Review Act [SEQRA]). The petition does not challenge the sufficiency of the ZBA’s environmental review pursuant to SEQRA or the ZBA’s action in issuing a negative declaration (see, 6 NYCRR 617.7 [c] [1]). The court erred, therefore, in addressing the issue of the ZBA’s compliance with SEQRA (see generally, Matter of Crawford v Kelly, 124 AD2d 1018). (Appeal from Judgment of Supreme Court, Chautauqua County, Ward, J. — CPLR art 78.) Present — Den-man, P. J., Green, Pine, Scudder and Callahan, JJ.