Posted by: Patricia Salkin | March 11, 2021

NY Appellate Court Finds Zoning Board Did Not Act Illegally When Granting Area Variances

This post was authored by Olena Botshteyn, Esq.

Edward Hocker owns a parcel of land located in the town of Riverhead. In 2018, Hocker applied for a building permit to construct a house on the parcel, and the building inspector determined that the proposed construction did not comply with the requirements of the zoning district. Hocker then applied for four variances to the Zoning Board of Appeals (“ZBA”) with respect to the impervious surface coverage, front yard setback, side yard setback, and combined side yard setbacks. At the public hearing, the petitioners that own a neighboring parcel argued that Hocker needs a lot size area variance to build on the parcel. The ZBA determined that such a variance is not required and granted four variances for which Hocker applied. Petitioners then sought judicial action stating that the ZBA acted illegally when it granted the variances; the Supreme Court denied the petition and the petitioners appealed.

On appeal, the court concluded that the ZBA used a required balancing test in granting the application for area variances. The ZBA determined that the proposed construction would not have a negative effect on the character of the neighborhood or on the physical or environmental conditions, and would not be otherwise detrimental to the health and welfare of the community. The court further elaborated that the ZBA did not have jurisdiction to decide whether a lot size area variance was required, because it decided only on the issues of the four variances, submitted for its review. The ZBA has an appellate jurisdiction, and Hocker’s applications were an appeal from the determination of the building inspector specifying the four requirements. Neither petitioners nor any other administrative official submitted the lot size area variance for the ZBA to review. The court thus affirmed the decision of the trial court and concluded that ZBA acted legally when granted the four variances.

Capetola v Town of Riverhead, 2021 WL 9000930 (NYAD 2 Dept 3/10/2021)

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


<span>%d</span> bloggers like this: