By Lisa A. Cairo
Advising a client of an unfavorable decision can be unsettling for any attorney. This is no different for land use attorneys faced with the denial of a client’s area variance application to a zoning board. One of the powers of both Town and Village zoning boards is to hear and determine applications for area variances.1 An area variance is the authorization by a zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations.2 Both residential and commercial property owners have the right to bring an application for an area variance before the governing zoning board. A residential homeowner may look to a zoning board for approval of an area variance when the proposed expansion of his home violates the municipality’s required yard setbacks. Often times a commercial property owner must appear before a zoning board for an area variance when the proposed use of his building requires a certain number of off-street parking spaces that are not provided on the subject property.
Area variances are arguably the most often sought after approval from a zoning board. Both Town and Village Law provide the criteria that a zoning board must review when hearing an application for an area variance. This criteria, commonly referred to as the five factor among land use attorneys are: (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 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.3
Both Town and Village Law permit a party that has made an application to a zoning board for relief to appeal an unfavorable decision in the New York State Supreme Court.4 An appeal of a Town or Village zoning board’s decision must be instituted within thirty days after the decision has been filed with the Town or Village Clerk.5 Although not as common in current land use practice, an opponent to a zoning application such as a neighboring property owner may choose to appeal a zoning board’s approval of an area variance. The mechanism available to appeal a zoning decision is found in Civil Practice Law and Rules Article 78 which provides for proceedings against a body or officer. A party aggrieved by a zoning board’s decision must establish that the zoning board has acted in an arbitrary and capricious manner in deciding the application.6 “Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion.”7 The Court of Appeals has explained that, “the crux of the matter is that the responsibility for making zoning decisions has been committed primarily to quasi-legislative, quasi-administrative boards composed of representatives from the local community. Local officials, generally, possess the familiarity with local conditions necessary to make the often sensitive planning decisions which affect the development of their community. Absent arbitrariness, it is for locally selected and locally responsible officials to determine where the public interest in zoning lies.”8
The broad discretion that a zoning board is given in deciding an area variance limits the grounds for appeal. It is evident from case law that the Court sees it as being in the best interest of a community for its own members to be the decision makers in matters of land use and zoning. Many would agree with the Court in this regard. However, even though the Court does not look to step into the shoes of a local zoning board, it will reverse a board’s decision in the event it is arbitrarily and capriciously and not based on the facts presents to the board. To that end, there are specific instances in which a land use attorney should counsel a client faced with a denial of an area variance to consider instituting an Article 78 proceeding. These instances are (1) when a zoning board denies an area variance strictly because of community opposition and (2) in certain situations when a zoning board has previously granted substantially similar area variance applications. “A decision of an administrative agency which neither adheres to its own precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious.”9
Counsel should however be forewarned that the fact that a zoning board has previously granted similar area variances does not guarantee that the Court will reverse the board’s denial. If the Court does in fact determine that the denied area variance application is indistinguishable from prior area variance approvals, then the Court will direct the board to provide specific reasoning for the current denial.10 A board’s acceptable reasoning for denying an application that is identical to prior applications that have been approved may include changes in a specific neighborhood since the prior approvals or the desire not to repeat a prior mistake in approving an area variance. On the other hand, if the Board provides inadequate reasoning for denying an area variance application that is strikingly similar to prior area variances that have been granted, the Court will likely find that the Board’s denial is arbitrary and capricious and direct that the area variance be granted.
Although zoning boards are granted great deference in deciding area variance applications, land use attorneys should not shy away from appealing denials that are clearly arbitrary and capricious. Appealing such a decision is beneficial not only for the party aggrieved by the board’s denial but also for future applicants looking for similar area variance relief. Applicants for both residential and commercial area variances should feel confident that if a board has previously granted a substantially similar application, their own application will also be successful.
[This article first appeared in Nassau Lawyer, the Journal of the Nassau County Bar Association, Vol. 65, No. 12.]
1 Town Law 267-b and Village Law 7-712-b
2 Town Law 267-1(b)
3 Town Law 267-b(3)(b)
4 In addition to hearing area variance applications, the jurisdiction of a zoning board includes hearing and determining use variances and special permits. Zoning boards also have the authority to set aside the determination of a building official.
5 Town Law 267-c(1) and Village Law 7-712-c(1)
6 C.P.L.R. 7803
7 See Matter of Campo Grandchildren Trust v. Colson, et al., 39 A.D.3d 746 (2007)
8 See Matter of Cowan v. Kern, 41 N.Y.2d 591 (1977)
9 See Matter of Pesek v. Hitchcock, 156 A.D.2d 690 (1989)
10 See Knight v. Amelkin, 150 A.D.2d 528 (1989)