Posted by: Patricia Salkin | January 25, 2023

NY Appellate Court Affirms Denial of Area Variances Based on Neighborhood Character and Because the Requested Variances were Substantial

This post was authored by Amy Lavine, Esq.

The petitioner had requested variances from several different zoning requirements, including the regulations for lot area, lot frontage, front yard setbacks, rear yard setbacks, and minimum and total side yard setbacks, which it needed so that it could build a single faming home. The board of zoning appeals (BZA) denied its request for area variances, however, and the Second Department affirmed the BZA’s denial on appeal. As the court explained, there was sufficient evidence to support the BZA’s determination that there would be an undesirable impact on the character of the neighborhood if it granted the variances, since it would be inconsistent with the pattern of development on nearby properties with respect to lot area and frontage. The court also distinguished the petitioner’s property from certain other nearby parcels that were similar in size because those lots had been “created out of necessity due to environmental constraints not present on the petitioner’s property.” Additionally, the court found that the requested variances were substantial, since the petitioner needed a total of six variances for its development proposal and because the lot area and lot frontage variances amounted to 80% and 54% deviations, respectively. Finally, the court noted that feasible alternatives to the variances were available, mentioning specifically that the petitioner could avoid the need for variances by acquiring adjacent undeveloped property.

Matter of White Birch Circle Realty Corp. v DeChance, 2023 NY Slip Op 00216 (NY App Div 2d Dept 1/18/2023)


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