An appeals court upheld the zoning board’s denial of an area variance where the board properly engaged in the required statutory 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 were to be granted. The Court found that the denial had a rational basis and was not arbitrary or capricious since the requested variances were substantial, the petitioner’s hardship was self-created, there were feasible alternatives to the requested area variances, and there was basis in the record to support the board’s determination that the proposed development would have an adverse impact on the physical or environmental conditions in the neighborhood, specifically with respect to surface water and groundwater quality.
While the petitioner also claimed that the zoning board had granted other area variances within a 500 foot radius of the subject property, the Court said that this alone is not sufficient to establish that the difference in result is either due to impermissible discrimination or to arbitrary action. The Court found that the petitioner failed to establish that the zoning board reached a different result on essentially the same facts.
Crilly v Karl, 2009 WL 3766321 (N.Y.A.D. 2 Dept. 11/10/2009).
The opinion can be accessed at: ttp://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2009/D24975.pdf
