NY Court of Appeals Upholds Denial of Area Variance Based on Characteristics of Environment and Because of Very Large Variance Requested

This post was written by Amy Lavine, Esq.

The applicant has requested a variation of a number of different zoning requirements, including regulations for the minimum and total side plot area, front yard setback, front yard setback, back yard setback, and side yard setback, required in order to construct one prominent house. However, the zoning appeals board (BZA) rejected his request for zoning differences, and the Second Department confirmed the rejection of BZA’s appeal. As explained by the court, there was insufficient evidence to support BZA’s decision that there would be unintended impacts on the character of the neighborhood if it granted the difference, as it would be inconsistent with the pattern of nearby property development with respect to the lots. area and front. The court also distinguished the applicant’s property from several other nearby land plots of similar size because the plots had been “created out of necessity due to environmental constraints that did not exist on the applicant’s property.” In addition, the court found that the variance requested was quite large, because the applicant required a total of six variances for his development proposal and because the variances of plot area and front of plots were 80% and 54% deviation respectively. Finally, the court noted that reasonable alternatives were available for the variance, mentioning in particular that the applicant could avoid the need for the variance by acquiring adjacent undeveloped property.

White Birch Circle Realty Corp. Problems v DeChance, 2023 NY Slip Op 00216 (NY App Div 2d Dept 1/18/2023)

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