NY Appellate Court Affirms Zoning Board’s Denial of Certain Area Variances to Enable Subdivision of Property into a Substandard Lot

This post was authored by Brandon C. Kemp, Touro University Jacob D. Fuchsberg Law Center

In this case, Nancy Pomponio (the “Petitioner) owned two separate lots in single ownership with a total of 17,839 square feet in area and applied to the Board of Zoning Appeals (“BZA”) of the Town of Brookhaven (“Town”) seeking a two-lot land division the lot(s) to enable her to construct a single-family residence on one of the subdivided lots. If the Petitioner’s application were to be granted, it would create a lot that would be only 4,000 square feet in area, where the minimum lot size for this neighborhood/zoning district is 22,500 square feet. As described by the BZA in its decision denying the area variance(s), this small lot would bear no resemblance to the local neighborhood since the minimum required lot size for this neighborhood is 22,500 square feet.

Following the BZA’s denial of the application, the petitioners brought a CPLR Art. 78 proceeding seeking review of the determination. After the lower court upheld the BZA’s determination, petitioners appealed.

The Appellate Division, Second Department, upheld the lower court’s ruling, explaining that judicial review of a zoning board of appeals pursuant to Art. 78 is limited to “ascertaining whether the action was illegal, arbitrary and capricious or an abuse of discretion.” Additionally, a zoning board is entitled to great deference if there is a rational basis that is not arbitrary, capricious, and supported by substantial evidence. When granting an area variance, the Court further stated the zoning board shall take into consideration the benefit to the applicant in granting the area variance(s) as weighted by the detriment to the neighborhood and possible health/safety concerns.

In rendering its decision, a zoning board shall consider whether: (1) there will be any detrimental change to the neighborhood’s character; (2) an applicant could achieve the relief in any way other than an area variance; (3) the request is substantial; (4) the variance would have any physical or environmental impacts to the neighborhood/district; and (5) the difficulty self-created, which consideration shall be relevant, but shall not necessarily preclude the granting of the area variance(s).

The Court concluded that the BZA engaged in the required balancing test and considered the relevant statutory factors in making its determination that Petitioner’s requested variance(s) would not conform to the surrounding development in this area. Accordingly, if the request had been granted, it would produce an undesirable change in the character of the neighborhood. Further, while the Petitioner argued that a subdivision was not necessary to develop the property because she already owned two separate lots, the record demonstrated that the lots had already merged prior to the application being made under the Town Zoning Code provision governing lot merger (Town Code § 85-2(c)(1)). Therefore, the Court affirmed the lower court’s decision and BZA determination denying Petitioner’s application.

Matter of Pomponio v. DeChance, 191 N.Y.S.3d 411 (2nd Dept. 2023).