Petitioner commenced a CPLR Article 78 proceeding challenging the decision by the Zoning Board of Appeals for the Town of Southampton to grant an application for an area variance allowing the applicant, 34 Cove, LLC, to construct a tennis court in the front yard of its nonconforming lot. The Supreme Court denied the petition and dismissed the proceeding.

On appeal, the Appellate Division found that the Zoning Board of Appeals had completed the required balancing test of the relevant statutory factors in making its decision.  It noted that while Petitioner was correct that the proposed variances were substantial and 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....” The Court also rejected the viability of the Petitioner's proposed alternative location, as well as the contention that the Code prevented the Town from approving construction of a tennis court on a nonconforming lot that lacks a primary structure. In light of this, and given the broad discretion of a zoning board to grant area variance applications, the Appellate Division affirmed the lower court’s ruling to dismiss the proceeding.

The case was Borrok v. Town of Southampton, 130 A.D.3d 1024 (2d Dep’t. 2015).