Posted by: Patricia Salkin | September 19, 2014

NY Appellate Court Upholds Reversal of Area Variance Denial

Following a denial of an area variance by the zoning board of appeals, the applicant appealed and the trial court reversed the decision. The zoning board appealed and the appellate court upheld the reversal. The Court noted that while the zoning board must apply the 5-part balancing test for the area variance, and that the courts will typically afford deference to the zoning board, here although there was some evidence in the record that the difficulty was self-created and that the requested variance was substantial, there was no evidence that the variance would produce an undesirable change in the neighborhood, that it would adversely impact on physical and environmental conditions, or otherwise result in a determinant to the health, safety and welfare of the neighborhood or community. Further, the Court determined that the Board’s denial was irrational, concluding that the Board relied on the “subjective considerations of community opposition.” Lastly, the Court found no rational basis in the record for the Board’s conclusion that the benefit sought could have been achieved by a feasible alternative.

Quintanna v Board of Zoning Appeals of Incorporated Village of Muttontown, 2014 WL 4435880 (NYAD 2 Dept. 9/10/2014)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2014/D42768.pdf


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