NY Appellate Court Finds Zoning Board Applied Wrong Test for Area Variance

Mimassi appealed a decision the zoning board of appeals that denied his application for an area variance. The appellate court rejected his contention that the determination was arbitrary and capricious because the Town had failed to adhere to its precedent since Mimassi failed to establish that the Town’s determination on another application was based on essentially the same facts as petitioner’s present application. However, the court did agree that the zoning board of appeals did not properly weigh the required statutory factors, but rather based its determination upon the no longer followed “practical difficulty” test (instead of the factors set forth in Town Law § 267–b (3)(b) ).

Mimassi v. Town of Whitestown Zoning Bd. of Appeals, 2015 WL 25849 (NYAD 4 Dept 1/2/2015)

The opinion can be accessed at: https://www.nycourts.gov/courts/ad4/Clerk/Decisions/2015/01-02-15/PDF/1279.pdf