Posted by: Patricia Salkin | November 29, 2008

Variance Denial Arbitrary Where Board Fails to Adhere to Its Own Prior Precedent

Although local zoning boards of appeal have broad discretion when considering applications for area variances, where the board fails to adhere to its own prior precedent and fails to indicate its reason for reaching a different result on essentially the same facts, the decision will not be upheld as it is considered arbitrary and capricious.


In the instant case, the zoning board had found on three prior occasions that the requested variance would not produce an undesirable change in the character of the neighborhood nor would it be a significant detriment to nearby properties.  Further, the board had determined that the requested variance was not substantial, that the benefit sought could not be achieved by other methods and that it would not produce an undesirable or adverse effect on the neighborhood. Therefore, the zoning board’s action in subsequently denying the application on the same facts without explanation lacked a rational basis and was arbitrary and capricious.


Bassano v. Town of Carmel Zoning Board of Appeals, 2008 WL 4936831 (N.Y.A.D. 2 Dept. 11/18/2008).


The opinion can be accessed at:

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