Posted by: Patricia Salkin | July 15, 2012

NY Appellate Court Upholds Area Variance Denial Where Substandard Lots Would Have Been Created

Petitioners sought to subdivide one large lot into two smaller lots and build a single family home on the rear lot with the only street access coming from a 20-foot wide driveway. The Zoning Board of Appeals of the Village of Russell Gardens denied the application since the subdivision would yield two substandard lots, both less than the 30,000 square-foot minimum. Also, the Code of Russell Gardens requires lots to have a minimum of 125 feet of street frontage.

The Appellate Division Court affirmed a prior decision in favor of the zoning board. The court determined that local zoning boards have broad discretion in considering applications for area variances, and when determining whether to grant an area variance, the board should engage in a balancing test weighing the benefit to the applicant against the detriment to the community. Here the Zoning Board properly considered the factors and rationally found that the granting of the variance would produce an undesirable change in the character of the neighborhood.

Nathan v. Zoning Board of Appeals of Village of Russell Gardens, 943 N.Y.S.2d 615 (NYAD 2 Dept., 5/8/2012)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2012/D34884.pdf


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