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Application for Area Variances Properly Denied—Court’s Review Criteria Explained—General City Law and Town Law Criteria for Area Variance Explained

The Second Department determined the city zoning board properly denied the application for area variances.  The court explained its role in reviewing the board’s determination and the criteria applied to applications for area variances under the General City Law and the Town Law:

” 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'” … . “Therefore, a zoning board’s determination should be sustained if it is not illegal, has a rational basis, and is not arbitrary and capricious” … .

In determining whether to grant an application for an area variance, a zoning board must engage in a balancing test weighing “the benefit to the applicant if the variance is granted . . . against the detriment to the health, safety and welfare of the neighborhood or community by such grant” (General City Law § 81-b[4][b];… see also Town Law § 267-b[3]). The zoning board must 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]…). Matter of Goodman v City of Long Beach, 2015 NY Slip Op 04484, 2nd Dept 5-27-15

 

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