Posted by: Patricia Salkin | July 22, 2020

NY Appellate Court Finds Denial of Areas Variances Lacked a Rational Basis

This post was authored by Matthew Loescer, Esq.

In 2016, the Zoning Board of Appeals of the Village of Upper Nyack denied five area variances the petitioner requested as part of his application to subdivide his property. Following this, the petitioner commenced this CPLR article 78 proceeding to review that determination. The Supreme Court granted his amended petition and remanded the matter to the ZBA to grant the petitioner’s application for those area variances. The ZBA appealed that decision in this case. 

At the ZBA’s request, the Village of Upper Nyack Planning Board, as the lead agency under the State Environmental Quality Review Act, directed the petitioner to complete additional forms and address specific issues of concern to the ZBA: including whether the proposal would negatively impact views from neighboring properties and views of the neighborhood from the Hudson River. The Planning Board issued a negative declaration, finding that the proposal would not have a significant adverse impact on the environment. Despite the Planning Board’s extensive environmental review of the petitioner’s proposal, the ZBA held that the area variances at issue in this appeal were substantial, and that granting them would produce an undesirable change in the character in the neighborhood. The ZBA did not, however, explain its departure from the Planning Board’s determinations. Moreover, the record reflected that the additional evidence before the ZBA, consisting of the claims of ZBA members and the petitioner’s neighbors that the variances at issue would adversely impact views and property values, were conclusory and uncorroborated by empirical data. Accordingly, the court affirmed the Supreme Court’s determination that the ZBA’s denial of five of the petitioner’s requested area variances lacked a rational basis.

 Simon v Englert, 2020 WL 4197056 (NYAD 2 Dept/ 7/22/2020)

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