Posted by: Patricia Salkin | January 26, 2019

NY Appellate Court Affirms Decision to Annul and Remand Variance Denial Since Board’s Decision Failed to Cite any Evidence

The petitioner lives in a neighborhood zoned for one-family and two family residences. Most of the houses in the neighborhood, including the petitioner’s house, were built before the enactment of the zoning law in 1920 and are located on lots that do not comply with the current zoning laws. The petitioner applied for five area variances to convert her one-family home into a two-family home. After a hearing, the Board of Zoning denied the application. The petitioner appealed and the trial court granted the petition, annulled the determination, and remitted the matter to the Board for reconsideration of the petitioner’s application for area variances. The Board appealed.

Although the Board engaged in the required balancing test, the Court agreed with the trial court that the Board failed to meaningfully consider the relevant statutory factors. The Court noted, “While the proposed variances were clearly substantial and the alleged difficulty was self-created, the Board’s failure to cite to particular evidence as to whether 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 requires reconsideration of the application, weighing all of these factors.” Accordingly, the Court affirmed annulling the Board’s determination, and remitting the matter to the Board for reconsideration.

Mengisopolous v. Board of Zoning Appeals of City of Glen Cove, 2019 WL 288111 (NYAD 2 Dept. 1/23/2019).

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