Posted by: Patricia Salkin | July 20, 2013

NY Appellate Court Upholds Annulment of Variance Denial

Petitioner, Luburic (“Luburic”), a property owner, sought review of the Zoning Board of Appeals of the Village of Irvington’s (“ZBA”) denial of her second application for a site capacity variance which was needed to construct a single-family residential building on a vacant lot. The trial court granted the petition, annulled the determination, and remitted the matter to the ZBA to grant the variance. The ZBA appealed. The appellate court affirmed holding that the ZBA’s denial had lacked a rational basis and that the lower court properly annulled the determination of the ZBA.

The court stated that the record before them did not support the ZBA’s determination that granting the Luburic’s second application would produce an undesirable change in the neighborhood and have a negative impact on the surrounding physical and environmental conditions, or that alternatives to granting a site capacity variance exist. The record showed that the Village of Irvington Planning Board (“Planning Board”) as the lead agency under the State Environmental Quality Review Act (SEQRA), issued a “Conditional Negative Declaration,” stating that, as long as certain conditions were met, the proposed construction would not have a significant negative effect on the environment. The ZBA still found that Luburic’s proposed construction would have a negative impact on the physical or environmental conditions of the neighborhood because the conditions imposed by the Planning Board were “impractical” and “implausible.” However, the court held given the Planning Board’s role in addressing environmental concerns, and the absence of further evidence to support ZBA’s conclusion, the finding of the ZBA lacked rational basis.

Similarly, the court stated that the ZBA’s decision that Luburic’s proposed construction would produce an undesirable change in the neighborhood did not have a rational basis. Besides the site capacity variance needed to build the house on the property, the plans originally submitted by Luburic with her first application to the ZBA, were in compliance with all zoning codes. After her first application was denied, Luburic addressed all of the concerns of the ZBA by submitting new plans for a smaller house, with a reduced floor area, a redesigned roof and reduced lot coverage. But the ZBA dismissed these proposed changes as not “dramatic enough,” citing, an advisory opinion issued by the Planning Board, which depicted Luburic’s altered plans as a “modest revision.” However, the court stated that this advisory opinion made an assessment of Luburic’s altered plans in connection with the construction and post-construction activities on the property, not to the character of the neighborhood.  Furthermore, the ZBA’s denial failed to address the feasible alternatives.

Luburic v. Zoning Board of Appeals of Village of Irvington, 2013 WL 1896314 (NYAD 2 Dept.  5/8/2013)

The opinion can be accessed at:

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