Court Upholds ZBA Decision To Grant Area Variance Despite Finding Variance Was Substantial

The Edwards applied to the Zoning Board of Appeals of the Village of Southampton (ZBA) for an area variance allowing them to demolish an existing cottage on their property and replace it with a larger cottage on a different part on their property. After a hearing, the ZBA granted the Edwards’ application. Petitioner, the owner of the property adjacent to the subject property who opposed the application, commenced this proceeding seeking review of the ZBA determination granting the application. The Supreme Court denied the petition and dismissed the proceeding, and Petitioner appealed.

On appeal, the court found that the Zoning Board’s determination that the Edwards required an area variance rather than a use variance had a rational basis in the record, and was not arbitrary and capricious, since they were not seeking to change the essential use of the property. The Court noted that the ZBA engaged in the required balancing test of the statutory factors, namely “(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 *893 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.”  

While the Court agreed that the proposed variance was substantial, there was no evidence that granting the variance would have an undesirable effect on the character of the neighborhood, adversely impact physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community. Moreover, the proposed variance would benefit the environment by “eliminating wetlands set-back nonconformities and removing the existing septic system that was located in the wetlands area.”  Accordingly, Supreme Court’s decision to deny the petition and dismiss the proceeding was affirmed.

The case was Wambold v Southampton Zoning Board of Appeals, 140 A.D.3d 891 (2d Dep’t 2016).

Powered by 123ContactForm | Report abuse