Posted by: Patricia Salkin | July 29, 2020

NY Appellate Court Affirms Denial of Variance to Allow Subdivision as the Hardship was Self-Created

This post was authored by Matthew Loescher, Esq.

In 1995, petitioner purchased a residential property in the Village of North Haven consisting of a lot with an area of 157,241 square feet and improved with a single-family dwelling. The property was located within an “R–1” zoning district, which required a minimum lot size of 80,000 square feet. In 2016, the petitioner applied for an area variance from the Zoning Board of Appeals of the Village of North Haven to subdivide the property into two lots. The proposed subdivision would result in a north lot and a south lot. The north lot, which contained all of the preexisting residential property improvements, would consist of 80,000 square feet. The south lot, which was in a natural state and would be developed with a single-family dwelling, would consist of 77,241 square feet. After a hearing, the ZBA found that, although the variance sought as a percentage was not substantial, the proposed substandard lot would have a detrimental effect on the character of the neighborhood, which was characterized by lots much larger than that required by code. The petitioner commenced this proceeding pursuant to CPLR article 78 to review the ZBA’s determination. The Supreme Court denied the petition and dismissed the proceeding, and the petitioner appealed.

On appeal, court noted that the record demonstrated that the ZBA engaged in the required balancing test and considered the relevant statutory factors. Specifically, the ZBA’s determination that the introduction of a substandard lot was detrimental to, and would cause an undesirable change in, the character of the neighborhood had a rational basis. Additionally, the petitioner was presumed to have known about the applicable zoning restrictions when he purchased the property, and therefore, any hardship was self-created. Accordingly, the court affirmed the Supreme Court’s determination to deny the petition and dismiss the proceeding.

Kaye v Zoning Board of Appeals of the Village of North Haven, 2020 WL 380637 (NYAD 2 Dept 7/15/2020)

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