Minimal Change In Structure With Approved Area Variance Does Not Justify Denial Of Amended Variances

The denial of an amendment to area variances due to minimal changes in the structure was struck down as inconsistent with the prior decision of a Zoning Board granting area variances. In Matter of Bout v. Zoning Board of Appeals of the Town of Oyster Bay, the Appellate Division noted that the Zoning Board had granted variances to construct an addition and after construction commenced, due to variations from the approved plans, the applicant sought an amendment to the variances which was denied. The Court found the amendment involved an additional 3.6 inch setback variance to accommodate a structure that was 6 inches larger on one side and 18 inches larger on the other side and therefore the denial of the amended variance was arbitrary..

In reversing the decision of the Zoning Board the court stated the general rule applicable to such cases:

"Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion'" ... Nonetheless, a determination of a zoning board of appeals that 'neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious'"

The Court went on to hold:

"Under the facts of this case, the requested amendments to the variance are de minimis (see Matter of Stapen v Siegel, 105 AD2d 841). Since the ZBA did not explain its reasons for reaching a different result on essentially the same facts as it had faced when making its prior decision, under the specific circumstances of this matter, its determination to deny the application for an amended variance was arbitrary and capricious, and must be annulled."

-Steven Silverberg