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Criteria for Area Zoning Variance and Court Review of Local Variance Proceedings Explained

The Second Department determined the zoning board had properly considered and denied an application for an area variance.  The court explained its review powers and the analytical criteria to be used by a zoning board:

“Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion” … . “Accordingly, on judicial review, the determination of a zoning board should be sustained if it is not illegal, has a rational basis, and is not arbitrary and capricious”… .

In determining whether to grant an area variance, a zoning board of appeals is required to engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted (see Village Law § 7-712-b[3][b]…). A zoning board must also consider “(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, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” (Village Law § 7-712-b[3][b]). In making that determination, the personal observations of members of the zoning board may be considered … . Matter of Sacher v Village of Old Brookvile, 2015 NY Slip Op 00773, 2nd Dept 1-28-15

 

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