Posted by: Patricia Salkin | April 10, 2015

NY Appellate Court Upholds Denial of Area Variance for Accessory Apartment

The Zoning Board of Appeals of the Town of Brookhaven denied the petitioner’s application for an area variance to maintain an accessory apartment on the subject premises.  The trial court upheld the denial and the petitioner appealed.  Judicial review is limited to ascertaining whether the action taken was illegal, arbitrary and capricious, or an abuse of discretion.  In reaching its decision, the Zoning Board of Appeals of the Town of Brookhaven engaged in the balancing test prescribed by Town Law § 267–b(3)(b). The court found that the ZBA’s conclusion that the grant of the variance would produce an undesirable change in the character of the neighborhood and a detriment to nearby properties was based on the testimony of the attendees at the public hearing and the ZBA’s own familiarity with local conditions. Furthermore, it found that the hardship alleged by the petitioner was self-created, for zoning purposes, as the petitioner acquired the property subject to the restriction. Finally, it was not arbitrary and capricious for the ZBA to have concluded that there was a feasible alternative to the variance, as the petitioner could have easily reduced the size of the accessory apartment. The court therefore affirmed the dismissal of petitioner’s claims.

Hatgis v DeChance, 2015 WL 894771 (NYAD 2 Dept. 3/4/2015)

The opinion can be accessed at:

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