Posted by: Patricia Salkin | July 8, 2012

NY Appellate Court Upholds Denial of Area Variance Where Dwelling Could Not Be Located High Enough Above Mean Sea Level

Plaintiff owns a waterfront parcel in the Village of Centre Island. After securing a tidal wetlands permit from the New York State Department of Environmental Conservation which permitted a dwelling to be constructed, plaintiff requested a building permit from the Village, in accordance with the plans submitted to NYSDEC. The Building Inspector denied the permit on four grounds: (1) the parcel did not meet the minimum frontage or (2) lot size requirements; (3) the plans did not meet all setback requirements; and (4) the proposed construction was prohibited because it called for a dwelling to be located less that 12 feet above the mean sea level.

The plaintiff appealed to the Board of Zoning appeals for area variances. The BZA approved the variances for the lot area, frontage, and setback issues. Upon inspection, the Board found that “the benefit to the petitioner outweighed any potential detriment to the community.” The Board could not reach a conclusion on the elevation issue, and the petition was denied in that regard. The plaintiff appealed to the Supreme Court, which directed the elevation variance to be approved, and the Board appealed.

The Court noted that in determining an application for an area variance, the board is “required to engage in a balancing test weighing the benefit of the grant to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted.” A court can only set aside a determination of the Board if the record reveals, “that the board acted illegally or arbitrarily, or abused its discretion.” The Court held that the record supported the Board of Zoning Appeals determination. The Board had conducted an extensive hearing on the matter. The Board had discovered that the elevation would “affect flooding, expose neighboring lands and the groundwater to potential contamination, and have an adverse impact on the aesthetic quality of the community.” Based on the evidence, the Court held that the board did not act “arbitrarily or illegally,” and their determination should have been upheld.

Jonas v. Stackler, 2012 WL 1939964 (N.Y.A.D. 2 Dep’t 5/30/2012)

The opinion can be accessed at:

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