Posted by: Patricia Salkin | April 18, 2016

NY Appellate Court Upholds Denial of Area Variance

Petitioner property owners appealed denial of their application for setback variance. The trial court denied the petition and dismissed the proceeding and the owners appealed. The appellate court affirmed the denial holding that the zoning board had a rational basis for denying owners’ application, and that the denial of owners’ application was not arbitrary and capricious.

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 against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted, and the court noted that in applying the balancing test, the board 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.

Here, the Board performed the balancing test and its conclusion that the detriment to the surrounding neighborhood posed by granting the requested variance outweighed the benefit to the petitioners had a rational basis and was supported by the record. In particular, the Board rationally found that granting the variances would produce an undesirable change in the character of the neighborhood and that the benefit sought by the petitioner could be achieved by other methods.

The petitioners further contended that the Board’s determination denying their application for an area variance was arbitrary and capricious because it had granted similar applications. “The fact that one property owner is denied a variance while others similarly situated are granted such variances, does not, in and of itself, indicate that the difference in result is due to impermissible discrimination or to arbitrariness.” Here, the petitioners’ failed to establish that the Board “reached a different result on essentially the same facts.” While it would have been advisable for the vice chairman of the Board to recuse himself from the proceeding if he felt that he had any bias against the petitioners, there was no “proof that the outcome flowed from the alleged bias.”

Harris v Zoning Bd. of Appeals of Town of Carmel, 137 AD3d 1130 (NY 3/23/2016)


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