Zoning Boards May Consider the Proposed Use and Purpose When Deciding Area Variance Applications, But Cannot Forget the Five-Factors

May 04, 2020

When deciding an area variance application, a zoning board may consider the proposed use of the property and the purpose in seeking the variance. However, the zoning board cannot fail to account for the five-factor test mandated by statute (see General City Law § 81-b[4][b][i]-[v]; Town Law § 267-b[3][b]; Village Law § 7-712-b[3][b]) and typically included within the respective municipal code or local law.

Last month, the Appellate Division, Third Department, reaffirmed these principles in 209 Hudson St., LLC v Ithaca Bd. of Zoning Appeals, 2020 NY Slip Op 02311 [3d Dept 2020]. In 2017, the petitioner purchased a single lot improved with one house situated within the City of Ithaca (“Ithaca”). The lot was affected by a preexisting side-yard deficiency. The petitioner applied to subdivide the parcel into two lots in furtherance of its development plans, which included retaining the existing home on one lot and constructing a multi-family dwelling on the other. In connection with its project, the petitioner required an area variance from the side-yard setback requirement and sought the same from the Ithaca Board of Zoning Appeals (“Ithaca BZA”). After several public hearings, the Ithaca BZA denied the application, and the petitioner challenged the denial by commencing an Article 78 proceeding in the Supreme Court, Tompkins County. In March 2019, the Supreme Court granted the petition and annulled the denial, the Ithaca BZA appealed, and the Appellate Division affirmed.

The Appellate Division’s decision sets forth the well-known statutory standard by which zoning boards determine whether to grant or deny an area variance, i.e. weighing the benefits to the applicant if granted against the detriment to the health, safety and welfare of the neighborhood or community if granted. In weighing these considerations, zoning boards must consider the five factors: (i) undesirable neighborhood change or detriment to nearby properties; (ii) whether the benefit can be achieved by some other feasible method; (iii) substantiality; (iv) adverse environmental impacts or effects; and (v) self-created hardship. Courts may only set aside a zoning board determination if the board “acted illegally or arbitrarily, or abused its discretion, or . . . merely succumbed to generalized community pressure.”

While the Ithaca BZA was not precluded from considering the petitioner’s proposed use of the property and purpose in seeking the area variance, and while it was entitled to factor the construction of the multifamily dwelling into its determination, the Ithaca BZA failed to set forth a rational basis based upon examination of the five factors. Specifically, the “[Ithaca BZA’s] consideration of the requisite factors . . . rested primarily on the opposing comments provided by those individuals living in the neighborhood,” where the record contained comments from individuals both in favor of and against the petitioner’s application. Moreover, an environmental review of the project concluded there would be no significant impacts to aesthetic or historic resources, the air, land, drainage or open space area; the Ithaca’s Planning Board issued an equivocal opinion about the petitioner’s project; and, the petitioner’s proposed use was a permitted use. The Appellate Division concluded: “Given that the views of the community in opposition to petitioner’s request by itself does not suffice to deny a variance, respondent’s determination lacks a rational basis.”

The Appellate Division’s opinion in 209 Hudson St., LLC reemphasizes that zoning boards may consider matters not directly related to the deficiency or variance request in reaching a determination, but must proffer a rational basis upon an examination of the five factors.