Firm Obtains Reversal Of Area Variance Denial Based On Changed Economic Circumstances After Hurricane Sandy Recovery

On December 18, 2017, the firm obtained a reversal of a decision by the Zoning Board of Appeals of the City of Long Beach (“ZBA”) that denied an area variance application that would permit the owner to subdivide the property into two lots. The Supreme Court, Nassau County held that the ZBA decision was arbitrary, reversed , and directed the ZBA to issue the variance. Of particular note, the Court rejected an argument by the ZBA that a prior variance from the aftermath of Superstorm Sandy was not comparable because the economic situation in Long Beach had improved.

The property is located in the City of Long Beach (“City”). After Petitioner purchased the property, the City directed that its dilapidated house be razed. Petitioner sought variances that would permit him to subdivide the property into two lots, and build a house on each. The ZBA denied the application, and indicated it would issue findings at a later date. Petitioner then retained the firm to file an Article 78 petition challenging the denial. The ZBA published its reasoning one month after the petition was filed.

In reversing the ZBA, the Court held its decision was arbitrary. First, the Court rejected the assertion that the curb cut would adversely affect parking, calling it “rank speculation” that “one large structure would cause less parking problems than two smaller ones.” The Court similarly found no support in the record for any of the ZBA’s other concerns, including increased traffic, the reduction of “green spaces and view corridors,” and an alleged Zoning Code preference for preserving larger lots.  In fact, the only evidence supporting denial “were the generalized complaints of community members,” none of which were supported by factual evidence the record. 

However, the most notable argument was the ZBA’s novel claim that a variance for a similarly situated lot was distinguishable because it was granted in the aftermath of Superstorm Sandy. The ZBA argued that when that variance had been granted, the belief was that people might not return to live in the City, but current economic circumstances did not require such incentives. The Court rejected this argument, holding that not only did the record lack support for this view, but that it fell outside the criteria the ZBA was required to consider, i.e. “the benefit to the application against the potential detriment to the community.”

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