Posted by: Patricia Salkin | August 12, 2012

Fed. Dist. Court in NY Finds No Equal Protection Violation Where Board Denied Variance

Plaintiffs allege that defendants violated the Equal Protection Clause of the Federal Constitution by treating plaintiffs differently from similarly situated individuals by denying plaintiffs’ variance application to subdivide their property and build a new home on one of their lots. The Town ofBrookhavenrezoned the area in which plaintiffs’ property is located. Prior to the rezoning, the zoning laws required a minimum lot size of 10,000 square feet per residential dwelling. In contrast, the new residence classification requires a minimum lot size of 40,000 square feet per residential dwelling as well as establishing other minimum requirements.

Despite the merger of the plaintiff’s two parcels, the property still fell short of the A–1 residence zoning requirement. Consequently, after the merge, plaintiffs’ property continued to be nonconforming and substandard. Plaintiffs were advised that they first needed to obtain a certificate of existing use prior to proceeding with their plans to build a new house. Plaintiffs applied for variances, but after weighing the potential harms to the community, the board voted to deny the applications.

Plaintiffs claim that they should succeed on a class-of-one equal protection claim since they were treated differently than others situated similarly. The defendants claim that plaintiffs have failed to identify a single comparator within a 500 foot radius of plaintiff who was permitted to subdivide an already nonconforming lot into a 10,000 square foot lot. In response the plaintiffs content that others with a lack of frontage were granted approval to build houses similar to what they planned and therefore should be considered similarly situated. Plaintiffs also offered four prior land divisions which they claim are similarly situated. However, the court found that none of the lots were “virtually identical,” which is required. At the time the parcels were granted the variance, they were subject to a different ordinance. For the properties to be considered virtually identical, they should at least be subjected to the same restrictions. Also, none of the other properties mentioned resulted in as extreme a departure from the zoning requirements as the departures sought by the plaintiffs. Therefore, the court granted the defendant’s motion for summary judgment. 

Aliberti v Town of Brookhaven, 2012 WL 2411908 (EDNY 6/25/2012) 

The opinion can be accessed at:


  1. I fail to see how this is not a regulatory takings. Does the ability of the owners to walk on their property leave then with ” substantial economically viable use” ? Aren’t variances legisatively in place to avoid this from happening to property owners?


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