Posted by: Patricia Salkin | November 14, 2015

NY Appellate Court Finds Rational Basis Existed for ZBA to Deny Area Variances for Setbacks

In 2009, the petitioners purchased property located in Bridgehampton in the Town of Southampton. The petitioners built a house on the lot, as well as a pool, deck, trellis in the front yard, and an accessory structure under the trellis consisting of a barbecue, sink, cabinets, countertop, and refrigerator. On December 12, 2012, the petitioners’ application for a building permit was denied on the ground that the accessory structure, which served as a kitchen, was not permitted in the front yard. The petitioners subsequently filed an application with the Zoning Board of Appeals of the Town of Southampton seeking setback and area variances for the accessory structure. After a hearing, the ZBA denied the application. The petitioners then commenced this proceeding pursuant to CPLR article 78 to review the ZBA’s determination. The Supreme Court determined that the ZBA’s determination lacked a rational basis and was arbitrary and capricious, granted the petition, and remitted the matter to the ZBA to grant the requested variances.

The court first noted that the zoning board, in applying the balancing test, was 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 was rational. Here, the evidence in the record supported the ZBA’s findings that granting the requested variances would produce an undesirable change in the character of the neighborhood, that the variances were substantial, that the petitioners could use a portable unit as a feasible alternative, and that any hardship was self-created. Furthermore, the court found that the three prior ZBA determinations that it submitted in support of its application did not constitute precedent from which the ZBA was required to explain a departure, since the petitioners failed to establish that the applications that led to those determinations bore sufficient factual similarity to the subject application. Accordingly, the Supreme Court’s decision to annul the ZBA’s determination deny the petitioners’ application for setback and area variances was reversed.

Kramer v Zoning Board of Appeals of Southampton, 131 A.D. 3d 1170 (NYAD 2 Dept 9/23/2015)


  1. Although this case is relatively straightforward, it highlights the ZBA’s broad discretion when making decisions on applications for area variances. A court can overturn a ZBA decision only when that decision is illegal, arbitrary, capricious, or an abuse of discretion.

    Additionally, it is important to remember that a ZBA’s decision to deny an area variance never requires supporting evidence of each and every statutory factor. This case nicely illustrates that it is a balancing test, not a checklist.

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