NY Supreme Court Annuls ZBA Decision Granting Area Variance Because The ZBA Failed To Consider Each of Factors Required Under Town Law §267-B

This post was authored by Jacob H. Zoghlin, Esq., Senior Associate Attorney at The Zoghlin Group, PLLC.

In Gasparino v. Town of Brighton Zoning Board of Appeals, E2019011432 (Monroe Co. May 18, 2020), homeowners brought an Article 78 proceeding challenging the Town of Brighton Zoning Board of Appeals’ (the “ZBA”) decision to grant an area variance for a neighboring residential property. While acknowledging that “local zoning boards have broad discretion in considering applications for area variances,” the Court nonetheless found that the ZBA’s decisions violated the law and lacked a rational basis, and so vacated and annulled the ZBA’s decision.

 

The Court explained that, even though local zoning broads have discretion in reviewing area variance applications, they are still required to consider five factors, under Town Law §267-B, in weighing “the benefit to the to the applicant” from the variance against the “detriment to the health, safety and welfare of the neighborhood or community by such a grant.”

 

Here, the Court held that “the ZBA failed to make a finding with respect to factor five, whether the alleged difficulty was ‘self-created.’ By that omission alone it cannot be said that the decision of the ZBA had a rational basis or was consistent with law.” The Court went on to find that the applicants’ hardship was self-created because the applicants knew when they purchased the property that the homes’ layout was inconsistent with the way that the applicants wanted to use the home, and that these issues were not of the type that “became apparent over time with the changing needs of the family.”

 

While noting that the finding of self-created hardship is not dispositive, the Court explained that the ZBA nonetheless should have considered this factor in weighing the benefit to the applicant against the detriment to the community, “especially where the benefit barely stands on its own.”

 

The Court further held that the ZBA’s decision lacked a “ration basis” because it ignored evidence of the detriment to the neighborhood. Specifically, the Court chastised the ZBA for summarily rejecting the evidence presented by petitioners at the administrative level: “While the ZBA is well within its mission to make credibility findings, its statement that there was no ‘actual evidence,’ (whatever ‘actual’ means) is not accurate, because it contradicts testimony by residents…, testimony that was no less authoritative than the [applicants’] unsubstantiated testimony.”

 

The Court also found that the ZBA, in granting the variance from property setback limits, misstated a major purpose of setbacks, which is to “ensure adequate distances between structures and the residential neighborhood.”

 

Additionally, with respect to the variance’s detriment to the community, the Court found that the ZBA failed to consider, and therefore failed to balance, the imposition of the proposed structure on green space and the character of the neighborhood.

 

Similarly, the Court held that the ZBA’s finding that the variance was not “substantial” lacked a rational basis because the ZBA failed to consider whether the variance would result in an encroachment on green space.

 

Based on the foregoing, the Court granted the Article 78 Petition in its entirety, annulled the ZBA’s decision, and vacated the area variance.