NY Appellate Court Upholds Granting of Area Variances

This post was authored by Matthew Loeser, Esq.

The petitioners owned and resided at 60 Kirby Lane in the City of Rye. The respondents Walter Nelson and Margaret Nelson were the owners of an adjacent property, which was undeveloped, and the respondent Robert Talt was the contract vendee for the Nelsons’ property. The Nelsons and Talt applied for area variances in order to construct a single-family residence on the property. The City of Rye Zoning Board of Appeals granted the application. The petitioners thereafter commenced this hybrid proceeding pursuant to CPLR article 78, and an action for declaratory relief, which sought to annul the Board’s determination and for a judgment declaring that the applicants could not create a trespass onto the petitioners’ property. The Supreme Court denied the amended petition and dismissed the proceeding.

On appeal, the court found that while the proposed variances were substantial, there was no evidence that the granting of the variances 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. Thus, the record reflected that the Board engaged in the required balancing test and considered the relevant statutory factors. Accordingly, the court affirmed the Supreme Court’s determination to deny the amended petition and dismiss the proceeding.

Hargraves v City of Rye Zoning Board of Appeals, 2018 WL 3131519 (NYAD 2 Dept. 6/27/2018)