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SUPREME COURT SHOULD NOT HAVE REVERSED THE ZONING BOARD OF APPEALS AND GRANTED THE PETITION FOR A VARIANCE TO CONSTRUCT AN IN-LAW APARTMENT, COURT’S LIMITED REVIEW POWERS EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the petition for a variance to allow construction of an in-law apartment should not have been granted:

To obtain a use variance, an applicant must demonstrate to the zoning board of appeals that “applicable zoning regulations and restrictions have caused unnecessary hardship” (Village Law § 7-712-b[2][b]). This imposes a “heavy burden” on the applicant …, who is required to establish: “[F]or each and every permitted use under the zoning regulations for the particular district where the property is located, (1) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence; (2) that the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood; (3) that the requested use variance, if granted, will not alter the essential character of the neighborhood; and (4) that the alleged hardship has not been self-created” (Village Law § 7-712-b[2][b]).

“Under a zoning ordinance which authorizes interpretation of its requirements by a board of appeals, such as Village of Patchogue Code § 93-47(B), specific application of a term of the ordinance to a particular property is governed by that body’s interpretation, unless unreasonable or irrational . . . [J]udicial review is generally limited to ascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion” …

The petitioner failed to make the requisite showing of “unnecessary hardship” for a use variance … . Additionally, there is no evidence that the ZBA [zoning board of appeals] failed to adhere to any prior precedent of granting use variance applications in similar situations … . Matter of Gray v Village of Patchogue, 2018 NY Slip Op 05677, Second Dept 8-8-18

ZONING (SUPREME COURT SHOULD NOT HAVE REVERSED THE ZONING BOARD OF APPEALS AND GRANTED THE PETITION FOR A VARIANCE TO CONSTRUCT AN IN-LAW APARTMENT, COURT’S LIMITED REVIEW POWERS EXPLAINED (SECOND DEPT))/VARIANCES (ZONING, SUPREME COURT SHOULD NOT HAVE REVERSED THE ZONING BOARD OF APPEALS AND GRANTED THE PETITION FOR A VARIANCE TO CONSTRUCT AN IN-LAW APARTMENT, COURT’S LIMITED REVIEW POWERS EXPLAINED (SECOND DEPT))

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