The fact that the zoning board denied one owner an area variance while granting another area variance does not in and of itself indicate that the difference is due to impermissible discrimination and arbitrary actions. The petitioner must demonstrate that the applications were essentially the same and here, the mere fact that the zoning board granted an area variance for a nearby multi-story residential building is alone insufficient to prove that the board’s conduct in denying the application was arbitrary. The Court also noted that the board properly applied the statutory balancing test for review of area variance applications, and noted that the board found that the requested variances where substantial, would result in a detriment to nearby properties, and would have an adverse effect on the physical and environmental conditions in the surrounding neighborhood. Further, these findings were supported by hearing testimony and documentary evidence. Furthermore, the Court agreed that the hardship was self-created since the zoning ordinance was in effect when the petitioner purchased the property.
Monroe Beach, Inc. v Zoning Board of Appeals of the City of Long Beach, 2010 WL 1242042 (N.Y.A.D. 2 Dept. 3/30/2010).
The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2010/D26729.pdf
