Posted by: Patricia Salkin | January 16, 2019

NY Appellate Court Affirms Area Variances for Stone Wall

This post was authored by Amy Lavine, Esq.

The facts of the case involved a property owner who applied for height and area variances to build a stone wall. He also asked for a “line of sight” variance after this was suggested by the zoning board during a public hearing, and his application was then approved at the next zoning board meeting. The petitioner, who opposed the application, then commenced this proceeding to review the board’s determination.


The court first recited the general framework for granting area variances in New York. Pursuant to state law, zoning boards must balance the benefit to the applicant against any adverse impacts to the health, safety, and welfare of the surrounding community. This determination must also address five statutory criteria:  “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created; which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.”


On the facts of this case, the court found that the zoning board properly applied the balancing test for area variances and considered each of the statutory criteria. As it explained, although “the alleged difficulty was partly self-created, there was no evidence that granting 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.”


The court also rejected the petitioner’s argument that the zoning board had no “jurisdiction” over the property owner’s “line of sight” variance because a formal application had never been filed. The zoning board’s procedural rules, the court explained, do not have the sort of “jurisdictional” effect that petitioner claimed. The court also found that the public hearing notice for the property owner’s application adequately apprised the public of the matter being considered, including the “line of sight” variance, as the description referenced the relevant section of the village code.


Debordenave v Village of Tuxedo Park Board of Zoning Appeals, 2019 WL 209036 (NYAD 2 Dept. 1/16/2019).

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