NY Appeals Court Finds that Variance Denial was Arbitrary and Capricious Because it was Based on Anonymous Complaints

This post was authored by Amy Lavine, Esq.

DPR operated a metal recycling business and sought a variance from a town ordinance that prohibited outdoor storage of scrap materials. Treating the request as one for an area variance, the court explained that the zoning board was required to weigh the benefit of the variance to the applicant against the detriment to the health, safety, and welfare of the neighborhood if the variance were granted. It was additionally required to consider five statutory area variance criteria: “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created.”

In this case, the court ultimately found that the zoning board’s decision denying the variance was arbitrary and capricious and not supported by substantial evidence. In particular, it “was based on anonymous and unsubstantiated complaints regarding DPR’s metal recycling business, and no evidence was presented at the hearing to demonstrate that granting the variance would lead to an undesirable effect on the character of the neighborhood, adversely impact physical and environmental conditions, or otherwise be detrimental to the health, safety, and welfare of the neighborhood or community.”

Matter of D.P.R. Scrap Metal, Inc. v Board of Zoning Appeals of Town of N. Hempstead, 2020 NY Slip Op 05505 (2d Dept 10/7/20).