An appellate court upheld the zoning board’s denial of requested area variances finding that the Board properly weighted the five statutory factors set forth in Town Law 267-b. Specifically, with respect to the issue of whether the requested variances would cause an undesirable change in the character of the community or have an adverse impact on the physical or environmental conditions on the neighborhood, the Court determined that the zoning board did not improperly rely on mere generalized community opposition, but that the board properly considered oral statements from area residents that were based on personal knowledge. Additionally, the board considered a memorandum from the Town’s Planning Division and Department of Environmental Control that objected to the development on a lot of the size proposed due to area congested. The memo also noted that most lots in the area were larger and that any existing smaller lots were developed prior to the effective date of the zoning code. The Court also noted that the board determined that the variances were substantial as they requested significant deviations from the zoning code requirements as well as the cumulative effect of the multiple variances requested. Lastly, the court agreed that the hardship was self-created since the petitioner knew the provisions of the zoning codes and that there was no guarantee that the property could be developed.
Millennium Custom Homes, Inc. v. Young, 2009 WL 145133 (N.Y.A.D. 2 Dept. 1/20/2009).
The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2009/2009_00389.htm
It would have helped to have a recitation of the “detailed oral statements from the area residents”. Same with Fagan v. Colson, cited by the Court. What will constitute relevant facts based on statements from the public based on personal knowledge. I have a case where the neighbors spoke against my client’s application for an area variance because they claimed that their wells can run dry during a dry season. There was no testimony as to when this happened and no empirical data showing the condition. Is this sufficient to be reliable information for the ZBA to base its decision? Especially when we have to go back to the Planning Board for subdivision approval?
We met in Williamsburg last weekend at the Green Building Law Symposium, my pleasure. Very informative, although I came away with more questions than answers.
By: jay myrow on February 3, 2009
at 11:20 am
I agree. So often the appellate decisions gloss over what may have been in unreported trial court opinions. I would think that more evidence is needed to make technical arguments, as opposed to community character claims.
By: Patty Salkin on February 3, 2009
at 5:25 pm
My concern is that every ZBA attorney is now going to cite this case as justification for the decision under review, just because a member of the public spoke from “personal knowledge”, no matter what the quality of comment. This will be a nightmare in Article 78s because a lot of Supreme Ct. judges will latch on to this case without reviewing the substance of the public comments.
By: jay myrow on February 4, 2009
at 11:38 am