Posted by: Patricia Salkin | October 16, 2019

NY Appellate Court Holds Failure of Town Board of Zoning Appeals to Explicitly Weigh Statutory Factors for Granting Area Variance Required the Matter to be Remitted

This post was authored by Matthew Loeser, Esq.
Petitioner Grace Pangbourne agreed to sell a portion of her property to the petitioner Ressa–Cibants, a real estate development partnership, which owned property adjacent to Pangbourne’s property. Ressa–Cibants intended to demolish the one-family dwelling on its property and replace it with two new two-family dwellings. In 2015, Ressa–Cibants applied to the Incorporated Village of Manorhaven Board of Zoning Appeals for height and coverage area variances to allow the construction of the new houses, and Pangbourne applied for a right-side yard variance to allow her to maintain her existing two-family dwelling on a reduced lot. After the Board denied both applications, Pangbourne and Ressa– Cibants commenced this CPLR article 78 proceeding to review the determinations. The Supreme Court denied the petition to annul the determinations denying Ressa–Cibants’s applications for height and coverage area variances, but granted that branch of the petition to annul the determination denying Pangbourne’s application for a right-side yard variance and remitted the matter to the Board for the issuance of the right-side yard variance requested by Pangbourne.
The court found the Board’s determinations did not reflect that the Board considered whether there was no feasible method to achieve the benefit sought by Ressa–Cibants without height and coverage area variances. Specifically, the record did not indicate that the Board weighed the benefit to Ressa–Cibants against the detriment to the health, safety, and welfare of the neighborhood by considering the five factors enumerated in the Village Law § 7–712–b(3)(b). As such, the court annulled the determinations denying Ressa–Cibants’s applications and remitted the matter to the Board.
Pangbourne v. Thomsen, 175 A.D.3d 547 (2 Dept. 2019)


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