NY Appellate Court Reverses Lower Court’s Decision to Grant Islip resident a Variance For an As-Built Pool That Required Setback Relief From the Town Zoning Code

This post was authored by Katherine Baurs-Krey, Jacob D. Fuchsberg, Touro Law Center

Petitioner built an in-ground pool on his property with a setback of six feet where the zoning code required a minimum of fourteen feet.  Petitioner then applied for an area variance for relief from the setback zoning regulations. The Town denied petitioner’s request, Petitioner the filed an Article 78 proceeding against the Town, and the Supreme Court granted the part of the petition and directed the Town to issue the variance.  The Appellate Division reversed.

The Court noted that it is well established that, “When a zoning board of appeals makes a determination of whether to grant an area variance to an applicant, the zoning board is required to engage in a balancing test, weighing the benefit of the grant to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted. There are five factors for this balancing test: “(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 Town considered the five factors and found that the variance would produce an undesirable change in the character of the neighborhood, as there was no precedent for this kind of relief, and the Town was very concerned with setting a precedent for such a small setback, causing detriment to neighboring properties. Additionally, Petitioner could have very well constructed the pool in a conforming location, and Petitioner gave no indication that a variance was needed to construct a pool on his property. Considering the Town’s rational for the setback requirements of protecting neighboring properties, as well as the inconsistent location of the pool, and that granting the variance would set a concerning precedent in the neighborhood, the ZBA determined that a granting of the variance would produce a negative physical and environmental effect on the neighborhood. Lastly, the hardship was self-created due to the contractor’s error. Therefore, the Court determined that the Town’s denial of the variance was rational, and the town does not have to further justify its determination.

Dutt v. Bowers, 2022 WL 2709362 (NYAD 2 Dept.2022)