Posted by: Patricia Salkin | July 28, 2015

NY Appellate Court Upholds Denial of Area Variance Where Hardship was Self-Created

In a proceeding to review a determination of the Village of Russell Gardens Zoning Board of Appeals denying the petitioner’s application for an area variance, the appellate court found that in applying the balancing test, is not required to justify its determination with supporting evidence for each of the five statutory factors, as long as its determination balancing the relevant considerations is rational. The court further noted that separate parcels of land in common ownership which have frontage on parallel streets and a common rear boundary are deemed not to have merged where it is shown that, during the period of common ownership, the parcels were never used in conjunction with one another and neither parcel materially enhanced the value or utility of the other. Here, the evidence before the zoning board showed that the subject lots, one containing a pre-existing single-family dwelling and the other two vacant, were used in conjunction with one another from 1948 until their purchase by the petitioner in 2011. Thus, the determination of the Zoning Board of Appeals of the Village of Russell Gardens that the subject lots had merged had a substantial basis and was supported by the evidence in the record. This decision was further supported by the facts that: the variances requested were substantial, the hardship was self-created, and the granting of the petitioner’s request for variances would have resulted in the creation of two more nonconforming lots in a unique neighborhood. Accordingly, the court held that the ZBA’s denial of the proposed area variances was supported by a rational basis.

Patrick v Zoning Board of Appeals of Village of Russell Gardens, 2015 WL 4095898 (NYAD 2 Dept. 5/21/2015)

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