Posted by: Patricia Salkin | September 2, 2012

NY Appellate Court Upholds Zoning Board’s Denial of Area Variance

Petitioner appealed from a decision by the Supreme Court, Nassau County that denied the petition and dismissed the proceeding to review the Board of Zoning Appeals of the Town of North Hempstead’s decision to deny the petitioner’s application for area variances. The Court held that “local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion.” The Court noted that when a Board considers an application for an area variance it must consider: “(1) whether the granting of the area variance will produce an undesirable change in the character of the neighborhood or a detriment to nearby properties; (2) whether the benefit sought by the applicant can be achieved by some method, feasible to the applicant, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the granting of the proposed variance will have an adverse effect of impact on the physical environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created.”

The Court held that the Board’s decision was not “arbitrary and capricious nor an abuse of discretion.” Based on the record, the Board found that the application would result in a “detrimental change in the character of the neighborhood, that the requested variances were substantial, and that the petitioner’s claimed hardship was self-created.” Furthermore, the evidence in prior cases which resulted in granting of area variances by the Board was found to be not substantially similar to the present case, therefore the Board did not have to explain any departure from precedent.

Daydod v Mammina, 2012 WL 2819310 (N.Y.A.D 2 Dept. 7/11/2012)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2012/D35573.pdf


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Categories

Follow

Get every new post delivered to your Inbox.

Join 819 other followers

%d bloggers like this: