Court Upholds Zoning Board’s Denial of Gas Station’s Area Variance Application

February 10, 2020

In Matter of Magid Setauket Assoc., LLC v The Town of Brookhaven Bd. of Zoning Appeals, the petitioners were the owner and the operator (“Petitioners”) of a Shell gas station located in the Old Setauket Historic District (the “Historic District”) Transition Zone, in the Town of Brookhaven (the “Town”).  Petitioners applied for an area variance to permit them to install a canopy extending over the gas pumps to protect patrons from inclement whether while filling up their tanks.  Petitioners’ proposed addition would have extended outward to 15.5 feet from the property line, where the Town Code required a minimum setback of 50 feet (see Town Code § 85-466 [C] [1]).  While Petitioners’ requested relief of nearly 70% relaxation from the Code was substantial, they pointed to prior examples where the Town Board of Zoning Appeals (the “BZA”) granted variances of similar or greater relief.

Residents, civic organizations, and various elected officials all opposed Petitioners’ application.  Public hearings were held in March and April of 2018, and the BZA formally denied Petitioners’ application in June of 2018.  Petitioners brought an Article 78 proceeding in July of 2018, seeking to annul the BZA’s denial of their area variance application.

The Court’s review here was limited, as it could annul the BZA’s denial only if it determined that the BZA “acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure.”  Regarding the latter, it is worth noting that a local “zoning board may [still] consider community testimony . . . and may require that issues raised by such testimony be addressed by the applicant,” provided that it does not “merely succumb” to such generalized pressure.  Nonetheless, local zoning boards are afforded broad discretion in making such determinations.

Here, Petitioners accused the BZA of ignoring its own precedent, citing examples where it granted variances for similar and more drastic setbacks on prior unrelated applications.  Additionally, Petitioners argued, inter alia, that because the gas station was located within the Transition Zone of the Historic District, rather than the Historic District itself, it should be afforded less scrutiny.  In response, the BZA argued that granting Petitioners’ application actually would have been precedent-setting, as none of the prior examples cited by Petitioners involved properties located within an historic district transition zone.[1]  The BZA also argued that Petitioners’ “hardship was self-created” and more feasible alternatives existed.  The BZA found that the proposed canopy would adversely impact the historic character of the area and “would result in an undesirable change to . . . the community.”  This and other factors served as the grounds for the BZA’s denial.

Ultimately, the Court upheld the BZA’s determination, finding that there was a rational basis to support it.  Addressing Petitioners’ argument regarding the prior variance grants, the Court ruled that just because similar variances may have been granted in the past, that does not mean the denial here was “arbitrary or capricious”.  None of those prior examples referenced by Petitioners’ involved properties that were in or surrounding any historic district, and that was a significant distinguishing factor.  Further, a local “zoning board ‘may refuse to duplicate previous error [or] change its views as to what is for the [Town’s] best interests’ . . . (Matter of Cowan v Kern, 41 NY2d 591, 595 [1977]) . . . .”

Takeaway:  Local administrative bodies enjoy significant discretion in the enforcement of their own code.  Even where there may be precedent to support an application, just one distinguishing fact, or simply just the board’s change of views, can serve as grounds for the opposite determination, which a reviewing court is likely to uphold.  Property owners, and lawyers alike, must be aware of this and consider all possible scenarios when appearing before such boards.

[1] The purpose of an “Historic District Transitional Area”, as defined by the Town Code, is “to control the effect of potentially adverse environmental, visual and developmental influences on an historic district” (Town Code § 85-1 [B] [“Historic District Transitional Area”]).