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Courts’ Review Powers Re: Zoning Board’s Grant of Area Variances Explained

In affirming the zoning board’s grant of area variances to “34 Cove” (re: construction of a tennis court), the Second Department explained the court’s limited review powers and noted that the board applied the appropriate balancing test and considered all the statutory factors. That is as far as a reviewing court can go:

” 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'” … . “Thus, the determination of a zoning board should be sustained upon judicial review if it is not illegal, has a rational basis, and is not arbitrary and capricious” … . ” It matters not whether, in close cases, a court would have, or should have, decided the matter differently. The judicial responsibility is to review zoning decisions but not, absent proof of arbitrary and unreasonable action, to make them'” … .

In determining whether to grant an application for an area variance, a zoning board 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 …

Here, the Zoning Board engaged in the required balancing test and considered the relevant statutory factors … . While we agree with the petitioner that the proposed variances were substantial …, and that the alleged difficulty was self-created …, there was no evidence that the granting of the variance would produce an undesirable change in the character of the neighborhood, have an adverse effect on physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community … . Moreover, the Zoning Board rationally concluded that the benefit sought by 34 Cove, namely, to maximize its use of the proposed tennis court, could not be achieved by the alternative site proposed by the petitioner … . Matter of Borrok v Town of Southampton, 2015 NY Slip Op 06340, 2nd Dept 7-29-15

 

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