Posted by: Patricia Salkin | July 3, 2009

Zoning Board May Properly Grant Variance on Second Request Where Circumstances Change

The Respondent requested area variances to permit him to subdivide a parcel into two substandard lots where he intended to relocate a single-family residence currently located on mid-parcel onto one lot, and to construct a new single family residence on the other lot. The zoning board granted the variances, and neighbors appealed, alleging that the Board’s decision was arbitrary and capricious as it failed to distinguish this application from a substantially similar prior application made for the same parcel three years earlier.

The appeals court upheld the zoning board’s decision, noting that a zoning board is required to adhere to its prior precedent, where it “provides a rational explanation for reaching a different result on similar facts, the determination will not be viewed as either arbitrary or capricious.” (citing Matter of Berk v. McMahon, 29 A.D.3d 902) Further, a board may change its views as to what is in the best interests of the municipality and the board may give weight to slight differences not easily discernable. (See, Knight v. Amelkin, 150 A.D.2d 528) The Court noted that it was within the discretion of the board to determine whether the modifications to the submitted application presented changed facts and circumstances and to weigh such accordingly. Here, the Court found that the board specifically noted several changes from the prior application, including modifications to the locations of the two dwellings, an increase in side yard setbacks, preservation of a mature tree, and an agreement to a restrictive covenant keeping the dwellings owner occupied with no accessory apartments. Further, the board noted that the current application differed from the prior one in that it contained substantial evidence of prior, similar variances and of the presence of other neighboring, substandard lots.

Waidler v. Young, 2009 WL 1694577 (N.Y.A.D. 2 Dept. 6/16/2009).

The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2009/2009_05147.htm


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