Denial of an Area Variance for a Parking Lot, Based Solely on the Subjective/Aesthetic Objections of Residents, Was Arbitrary and Capricious—Statutory Factors Not Applied to the Decision-Making Process

The Second Department reversed Supreme Court, finding the Zoning Board of Appeals’ (ZBA’s) denial of an area variance (re: a parking lot for residents of a cooperative),based solely upon the subjective objections of town residents, was arbitrary and capricious. The ZBA’s decision did not address the statutory factors applied to area variances:

Pursuant to General City Law § 81-b, in determining whether to grant an application for an area variance, a zoning board must weigh the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted … . This inquiry also includes a consideration of whether (1) granting the area variance will produce an undesirable change in the character of the neighborhood or a detriment to nearby properties; (2) the benefit sought by the applicant can be achieved by some method, feasible to the applicant, other than an area variance; (3) the requested area variance is substantial; (4) granting the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) the alleged difficulty was self-created (see General City Law § 81-b[4][b]…).

Here, while it was rational for the ZBA to conclude that the requested variance was substantial, its determination to deny the variance was otherwise conclusory and lacked an objective factual basis. In particular, no evidence was adduced which demonstrated that the health, safety, and welfare of the neighborhood or community would be detrimentally affected by the granting of the requested variance … . Rather, the ZBA was merely presented with the subjective objections and general community opposition of neighboring property owners, most of whom expressed their subjective opinions as to the negative aesthetics of a parking lot. Further, the ZBA did not provide an objective basis upon which to conclude that the petitioner had a feasible alternative to the requested variance, and there was no evidence that the situation was self-created. In light of the current condition of the property, the legality of using the lot as a small parking lot, and the fact that the lot is fenced so as to block ground-level water views, the ZBA failed to explain how the expansion of the number of spaces in the lot would change the character of the neighborhood.

Accordingly, the record does not contain sufficient evidence to support the rationality of the ZBA’s determination denying the proposed area variance … . Since the ZBA’s determination was irrational and arbitrary and capricious, the Supreme Court should have granted the petition, annulled the ZBA’s determination, and remitted the matter to the ZBA for the issuance of the requested area variance. Matter of Marina’s Edge Owner’s Corp. v City of New Rochelle Zoning Bd. of Appeals, 2015 NY Slip Op 04851, 2nd Dept 6-10-15