ZONING BOARD MAY DENY VARIANCE DESPITE PRIOR APPROVAL OF SIMILAR RELIEF

In a CPLR Article 78 proceeding, an appellate court held that where a zoning board provides a rational explanation for denying a variance, the determination will not be viewed as either arbitrary or capricious even if a variance has been granted to another property on similar facts. In Matter of Ronald Berk v .Richard McMahon, the Appellate Division Second Department upheld the Zoning Board of the Village of Southampton’s refusal to grant a wetlands special permit and area variances.

The appellate court considered the zoning board’s reasoning in upholding its action. In determining whether to grant an area variance, the board engaged the required balancing test, weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community in the event the variance is granted. The board also satisfied a statutory requirement by examining whether (1) an undesirable change in the character of the neighborhood will result, or a detriment to nearby properties will be created by the granting of the area variance, (2) the benefit sought by the applicant can be achieved by some feasible method, other than an area variance, (3) the required area variance is substantial, (4) the proposed variance will have an adverse impact on environmental conditions in the neighborhood or district, and (5) the alleged difficulty was self-created.

Supplying a rational explanation for refusing to grant a variance is therefore sufficient to validate the action; the board is not required to grant the variance solely because one has been granted in the jurisdiction in similar circumstances. Judicial review of a board decision is limited in scope to a determination of whether the board’s action violated lawful procedure, was affected by an error of law or was arbitrary and capricious, or an abuse of discretion. In this instance the court upheld the Southampton Board decision based on a finding that it has some objective factual basis in the record and did not entirely rest on subjective considerations.