Posted by: Patricia Salkin | January 11, 2008

NY Appeals Court Finds ZBA Acted Arbitrarily in Denying Area Variances from Wetlands Setback Requirements

In New York, zoning boards of appeals are required to engage in a statutory five-part balancing test in determining whether to grant an area variance.  This test weighs the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community.  Specifically, the zoning board is required to consider: whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties if the variance is granted; whether the benefit sought by the applicant can be achieved by the some method, feasible to the applicant, other than an area variance; whether the proposed variance is substantial; whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district if the variance s granted, and whether the alleged difficulty was self-created. A reviewing court will uphold a decision of a zoning board of appeals so long as it is not arbitrary and capricious and where it is based on substantial evidence in the record. 

The Court found that the zoning board’s denial of the area variances from wetlands setback requirements was arbitrary as the record revealed that the Board improperly succumbed to community pressure.  Noting that all of the surrounding lots were nonconforming with respect to the requirements for setbacks from wetlands, the Court said that the construction of a new home would increase the distance between the wetlands and the residence. The Board’s view that the petitioners could undertake a more limited expansion of the existing residence was irrational, because the Court found that such a proposal would only serve to decrease the setbacks from wetlands, and the petitioners had already reduced the size of the proposed residence. The Court found no evidence in the record that the granting of the variances would have an undesirable effect on the character of the neighborhood, adversely affect the physical and environmental conditions, or otherwise result in a detriment to the health, safety and welfare of the neighborhood or community.  

Schumacher v. Town of East Hampton, 2007 WL 4328452 (A.D. 2nd Dept. 12/11/2007). 

The opinion can also be accessed at:

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