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Denial of Area Variance In the Absence of Evidence of a Detrimental Effect on the Community Was Arbitrary and Capricious

The Second Department determined Supreme Court correctly held that the zoning board of appeals’ denial of area variances was arbitrary and capricious.  The court noted that similar variances had been granted to other parties and there was no evidence before the board that the variances would have an undesirable effect on the character of the community, adversely affect the physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood:

In determining whether to grant an area variance, a zoning board must consider “the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant” … . The zoning board should also consider “(i) 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; (ii) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (iii) whether the requested area variance is substantial; (iv) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (v) 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” (General City Law § 81-b[4][b]). In applying the statutory balancing test for granting area variances, a zoning board is “not required to justify its determination with supporting evidence with respect to each of the five factors, so long as its ultimate determination balancing the relevant considerations was rational”… . Matter of L & M Graziose, LLP v City of Glen Cove Zoning Bd. of Appeals, 2nd Dept 4-8-15

 

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