Posted by: Patricia Salkin | March 5, 2015

NY Appellate Court Upholds Denial of Variances for Accessory Structure

Following the denial by the zoning board of an application for certain setback and area variances for a second-story addition to an accessory building, and an affirmance by the trial court, petitioner appealed. The appellate court affirmed the judgment and holding that the finding of the Board of Zoning Appeals that the detriment to the community outweighed the benefit of granting the requested variances had a rational basis in the record and was not arbitrary and capricious.

The court reiterated the statutory test, that in determining whether to grant an area variance, a zoning board of appeals is required to engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted. A zoning board must also consider “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance”. Further, in making that determination, the personal observations of members of the zoning board may be considered.

Here, the evidence before the Board and the Board’s visual inspection of the property supported its conclusion that granting the proposed variances would be a detriment to nearby properties and produce an undesirable change in the character of the neighborhood. Additionally, the Court found that the Board rationally concluded that the requested variances were substantial in nature and that there was a feasible alternative to increasing the size of the accessory building, since there were other structures on the property which could provide additional storage space. Likewise, the petitioners’ hardship was self-created in that they completed the additions to the accessory building without obtaining a building permit. Further, the Board “was entitled to consider the effect its decision would have as a precedent”

Sacher v. Village of Old Brookville, 124 A.D.3d 902 (N.Y. A.D. 2 Dept. 1/28/2015)

The opinion can be accessed at: http://www.courts.state.ny.us/reporter/3dseries/2015/2015_00773.htm


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