Posted by: Patricia Salkin | November 28, 2010

NY Appellate Court Upholds Denial of Area Variance

Petitioner appealed the denial of an area variance which was upheld by trial court. The appeals court upheld the denial, observing that “local zoning boards have broad discretion in considering applications for variances.” The Court explained that when presented with an application for an area variance, the zoning board is required to balance the benefits of the plan to the applicant involved against and detrimental effects to the safety, health, and welfare of the neighborhood.  Factors to be considered include negative alterations made to the character of the neighborhood or surrounding properties, whether there is another way for the applicant to pursue such benefits other than the variance, whether the area variance is substantial, the negative impact of the environmental/physical aspects of the community, and whether the “alleged difficulty was self-created.”  The Court found that the Board properly considered the statutory factors, and using the balancing test, had a rational basis in denying the application. Therefore, the Board’s decision was not illegal or arbitrary and capricious. The Board found that the variances “were substantial, would result in a detriment to nearby properties, would have an adverse effect on the physical and environmental conditions, and that the benefit sought by the petitioner could be achieved by an alternative feasible method.” In addition, the petitioner’s difficulties were self-created. The Court also found that the petitioner’s contention that another property owner in a similar situation was granted a variance did not mean that the Board acted in an arbitrary or discriminatory manner, as the petitioner did not “demonstrate that the [Board] ‘reach[ed] a different result on essentially the same facts.’” 

Matejko v. Board of Appeals of Town of Brookhaven, 2010 4243722 (N.Y.A.D. 2 Dept., 10/26/2010) 

The opinion can be accessed here

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