Posted by: Patricia Salkin | June 9, 2016

NY Appellate Court Upholds Granting of Area Variance Despite Finding it to be Substantial

Philip M. Edwards and Nina S. Edwards applied to the Zoning Board of Appeals of the Village of Southampton for an area variance allowing them to demolish an existing cottage on their property and replace it with a larger cottage on a different part on their property. After a hearing, the Zoning Board granted the Edwards’ application. The petitioner, the owner of the property adjacent to the subject property and who opposed the application, commenced this proceeding seeking review of the determination granting the application. The lower court denied the petition and dismissed the proceeding.

On appeal, the court found that the Zoning Board’s determination that the Edwards required an area variance rather than a use variance had a rational basis in the record, and was not arbitrary and capricious, since they were not seeking to change the essential use of the property. Additionally, the Zoning Board’s determination to grant the area variance had a rational basis as the Zoning Board engaged in the required balancing test and considered the relevant statutory factors. While the court agreed with the petitioner that the proposed variance was substantial, there was no evidence that the granting of the variance would have an undesirable effect on the character of the neighborhood, adversely impact physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community. Moreover, the proposed variance would have a beneficial impact on the environment by eliminating wetlands set-back nonconformities and removing the existing septic system that was located in the wetlands area.  Accordingly, decision below was affirmed.

Wambold v Southampton Zoning Board of Appeals, 2016 WL 3177020 (NYAD 2 Dept. 6/8/2016)


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