Posted by: Patricia Salkin | November 24, 2022

NY Appellate Court Upholds Area Variance Denial and Refuses to Entertain Bias Claim Raised on Appeal for the First Time

Petitioner’s application for a area variances to build a single-family dwelling on a substandard lot in the Town was denied.  Petitioner appealed to the trial court which upheld the denial and the appellate court affirmed.  The appellate court agreed that that Board of Zoning Appeals engaged in the required balancing test, noting that the Board concluded that the detriment to the surrounding neighborhood should the variances be granted was outweighed by the benefit to the petitioner. Further the Board concluded that the requested variances would have an adverse impact on the physical and environmental conditions of the neighborhood, that the granting of the variances would set a negative precedent in the neighborhood and that the petitioner’ hardship was self-created.  Since the Board applied the statutory balancing test and it was based on substantial evidence in the record, the Court found it has a rational basis and upheld the decision.

Although the petitioners argued that the Board was biased against them and acted out of personal animus, the allegation was raised for the first time on appeal and therefore the Court did not consider it.

Massian v Board of Zoning Appeals of the Town of Brookhaven, 2022 WL 17171201 (NYAD 2 Dept. 11/23/2022)


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