After the Zoning Board denied Petitioner’s application for setback and area variances for a second-story addition to an accessory building, and that decision was affirmed by the trial court, Petitioner appealed. On appeal, the Appellate Division affirmed the judgment in favor of the Zoning Board of Appeals.
As periodically discussed on this blog, the statutory test for granting an area variance requires the zoning board of appeals to weigh the benefit to the applicant against detriments to the health, safety, and welfare of the neighborhood if the variance is granted. The five factors the ZBA considers are: “(1) 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; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) 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.” In addition, personal observations of members of the zoning board may also be considered.
Here, the Court found that the evidence and Board member's inspection of the property supported the conclusion that granting the variances would be to the detriment of nearby properties and undesirably change the neighborhood’s character. In addition, the Board rationally concluded that the requested variances were substantial and that there was a feasible alternative to increasing the size of the accessory building, since there were other structures on the property that could provide additional storage space. Likewise, Petitioners' hardship was self-created as they completed the additions to the building without obtaining a building permit. Finally, the Court noted that the Board “was entitled to consider the effect its decision would have as a precedent.”
The case was Sacher v. Village of Old Brookville, 124 A.D.3d 902 (App. Div. 2015) and can be found at: http://www.courts.state.ny.us/reporter/3dseries/2015/2015_00773.htm