Second Department Reverses Decision Denying Renewal Of Use Variance Absent Owner-Occupation Condition

Petitioners owned property improved with a two-family residential dwelling in the Town of Hempstead (“Town”). They applied to the Board of Appeals of the Town of Hempstead (“Board”) to renew a use variance allowing the property to be used as a two-family dwelling without the condition that the property be owner-occupied. The Board renewed the variance, but denied the portion of the application that sought to lift the accompanying condition, and instead renewed the variance on the condition that at least one apartment at the subject property must be owner-occupied at all times. Petitioners commenced a CPLR article 78 proceeding to review the determination denying the renewal without the condition. The Supreme Court denied the petition and dismissed the proceeding.

On appeal, the Court noted that the Board improperly relied upon the doctrine of res judicata to deny Petitioners’ request for renewal without the condition, a point not disputed by the parties, and that as a result, the Board did not analyze the merits of imposing an owner-occupied condition.  It further noted that “if the grounds relied upon by the agency are inadequate or improper, a reviewing court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.” Since the Board never reached the merits, the Court held that the lower court erred in analyzing the merits itself, in essence substituting its own judgment for that of the Board.  Thus, the Court reversed the lower court’s decision and remitted the matter to the Board for a determination on the merits.

The case was Rodriguez v Weiss, 149 A.D.3d 842 (2d Dep’t 2017).

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