Appellate Division Rejects Neighbor Attempt to Add Variances to Scope of Property Owner’s ZBA Application.
March 29, 2021
Absent local legislation to the contrary, town and village zoning boards act solely as appellate bodies authorized to hear and decide appeals taken from decisions by local zoning enforcement officials (ZEOs) (see Town Law § 267-A [McKinney’s]; Village Law § 7-712-A [McKinney’s]). The most common example of such appeals occurs when an applicant property-owner or developer applies to their local zoning board for a variance following a ZEO’s determination that the applicant’s project does not conform to the local zoning code.
But what happens if a neighbor disagrees with the local ZEO’s assessment and believes that greater or different relief from the zoning code is required for the appellant’s project? Can the neighbor simply air their objections on the record at the zoning board’s hearing on the application? No, they must independently appeal the ZEO’s determination as a party “aggrieved” by the decision (id.). The danger of failing to do so is highlighted in the Second Department’s recent decision in Capetola v Town of Riverhead et al, — NYS3d —, 2021 WL 900930 (March 10, 2021).
In Capetola, Edward Hocker (“Hocker”), the owner of a vacant parcel of land in the Town of Riverhead, applied to the Town’s building department for a permit to construct a single-family residence on the site. The building inspector (i.e. ZEO) denied Hocker’s application on the grounds that the project did not conform to the applicable standards for impervious surface coverage, front yard setback, side yard setback, and combined side yard setbacks. Hocker appealed the building inspector’s determination by application to the Respondent Town of Riverhead Zoning Board of Appeals (ZBA) seeking four area variances, one for each of the standards identified in the building inspector’s denial.
At the public hearing on Hocker’s application, neighbors of the property appeared in opposition to the application arguing, among other things, that a lot size variance was needed because the lot did not meet the minimum dimensional requirements of the zoning code. The ZBA rejected the neighbor’s objections concerning the need for the lot size variance and granted Hocker’s application in its entirety. The neighbors sued arguing, among other things, that it was improper for the ZBA not to consider the need for the additional variance. The Supreme Court, and the Second Department on appeal, disagreed.
Unless otherwise provided for by local law or ordinance, a zoning board of appeals’ jurisdiction is appellate only, and in the absence of an administrative determination to review, a zoning board of appeals is without power to grant a variance or render a de novo determination with respect to an issue not determined by an administrative official. Here, the only issues to be decided by the ZBA were with respect to the four variances sought by Hocker in his application to the ZBA, upon his appeal from the determination of the building inspector identifying those four requirements of the relevant building code. There was no determination of an administrative official regarding the need for a lot size area variance for the ZBA to review, and there was no appeal by the petitioners to the ZBA. Since the ZBA was without jurisdiction to decide the need for a lot size variance, any error by the ZBA in determining that issue does not require remittal of this matter to the ZBA for a new determination (2021 WL 900930 at *2 [internal citations omitted] [emphasis added]).
Thus, having failed to challenge the underlying ZEO decision which led to Hocker’s application to the ZBA, his neighbors could not use the purported need for an additional variance as grounds for denial of Hocker’s application. Whether or not they were right is effectively irrelevant.