Posted by: Patricia Salkin | October 27, 2012

NY Appellate Court Affirms Grant of an Area Variance to Cover a Junkyard

Jacoby Real Property (hereinafter “JRP”) initiated this special proceeding to challenge the grant of an area variance to adjacent property.  The Supreme Court dismissed the defendants’ motion to dismiss for failure to join necessary parties, and then transferred the case up to the Appellate Division, Second Department for review.  Although the case was erroneously transferred up, the Second Department heard the case in the interests of judicial economy and affirmed the decision of the Zoning Board of Appeals of the Town of Clinton (hereinafter “ZBA”).

The Jacoby’s live next door to Klopping, who owns two lots adjacent lots.  One of these lots is used for a repair shop with a supporting junkyard.  This is a noncompliant land use that has been grandfathered in as a nonconforming use.  Klopping applied for an area variance to enable him to construct a 3,200 square foot barn-like structure to enclose the junkyard.  The ZBA determined that an area variance was necessary and granted the same because the structure would reduce the nonconforming use.  This variance merged the two Klopping lots to accommodate the structure.

The Jocoby’s filed suit as JRP, which holds title to their property.  JRP filed suit against the ZBA, and Klopping sought an adjournment and leave to intervene.  JRP added Klopping as a party and amended the petition.  Klopping and the ZBA moved to dismiss for failure to join a necessary party.  The Supreme Court denied the motion, and the Second Department affirmed.

The Second Department then determined that the ZBA’s decision to utilize an area variance, rather than a use variance, was supported by a rational basis.  The court held that the area variance was the proper mechanism as Klopping did not seek to change the use of the property.

Next, the Second Department addressed whether the ZBA’s grant of the area variance was supported by a rational basis.  When the considering an area variance application, the court provided that a Zoning Board of Appeals must undertake a balancing test, weighing the benefit to the applicant against the detriment to the health, safety and welfare of the community.  In making this determination, the ZBA had to consider the following five factors: whether there would be an undesirable change to the nearby area, whether the benefit to the applicant can be achieved by other means, whether the variance is substantial, if the variance will have a detrimental effect on the surrounding environment, and whether the hardship was self created.  Specific evidence on each factor is not required.

Upon a review of record, the Second Department found that the grant of the area variance was supported by a rational basis.  The ZBA had considered each of the five factors and made corresponding findings.  The court further noted that the decision was not based on generalized community support, as the petitioner claimed.  Since the area variance was supported by a rational basis, the Second Department affirmed the determination of the ZBA.

Jacoby Real Property v. Malcarne, 96 A.D.3d 747 (2nd Dep’t, June 6, 2012).

The opinion can be accessed here.


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