Second Department Upholds Denial of Area Variance

Petitioners applied for a setback variance with the Town of Carmel Zoning Board of Appeals. When the application was denied, Petitioners brought an Article 78 proceeding to appeal the decision. The trial court denied the petition and dismissed the proceeding. Petitioners appealed.

In determining whether to grant an area variance, a zoning board must engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood if the variance is granted.  In applying this test, the zoning board is not required to justify its determination with supporting evidence for each of the statutory factors, so long as its determination is rational.  Here, the ZBA performed the balancing test and found that granting the variances would produce an undesirable change in the character of the neighborhood and that the benefit sought by Petitioners could be achieved by other methods.  Accordingly, the Court ruled that the ZBA’s decision that the drawbacks outweighed the benefits to the petitioners had a rational basis and was supported by the record.

Petitioners also contended that the Board denying their application for an area variance was arbitrary and capricious because it had granted similar applications. “The fact that one property owner is denied a variance while others similarly situated are granted such variances, does not, in and of itself, indicate that the difference in result is due to impermissible discrimination or to arbitrariness.” Here, Petitioners failed to establish that the Board “reached a different result on essentially the same facts.” While the vice chairman of the ZBA arguably should have recused himself if he felt that he had any bias against Petitioners, there was no “proof that the outcome flowed from the alleged bias.”

The Court thus affirmed the lower court’s decision, holding that the ZBA had a rational basis for denying owners' the setback variance and that the denial of the area variance was not arbitrary and capricious.

The case was Matter of Harris v. Zoning Bd. of Appeals of Town of Carmel, 137 A.D.3d 1130 (2d Dep’t 2016).

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