Posted by: Patricia Salkin | July 16, 2015

NY Appellate Court Upholds Area Variance Which Would Permit Owner to Build a Mixed-Use Residential and Commercial Building on Its Property

In September 2012, BK at Long Beach, LLC, applied to the Zoning Board of Appeals of the City of Long Beach, for area variances which would permit it to build a mixed-use residential and commercial building on its property. After a hearing, the ZBA granted BK’s application. The petitioners, who had opposed the application, commenced this CPLR article 78 proceeding seeking review of the determination. The Supreme Court denied the petition and dismissed the proceeding, and the petitioner’s appealed.

The court first noted that in determining whether to grant an application for an area variance, a zoning board must engage in a balancing test weighing “the benefit to the applicant if the variance is granted against the detriment to the health, safety and welfare of the neighborhood or community by such grant.” Because the ZBA engaged in the required balancing test and considered the relevant statutory factors, the court found its decision was not arbitrary and capricious even though the proposed variances were substantial and the applicant’s alleged difficulty was self-created. Furthermore, the ZBA rationally concluded that the benefit sought by BK could not be achieved by a feasible alternative method which would not require an area variance. Accordingly, the court affirmed the dismissal of the petitioner’s claims.

Goodman v City of Long Beach, 2015 WL 2457861 (NYAD 2 Dept. 5/27/2015)

The opinion can be accessed at:

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