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Area Variance Denied as Not Sufficiently Similar to Other Previously Approved Variances

The Appellate Division reversed the Supreme Court and upheld the denial of an area variance for a rear yard setback to an in ground pool, despite prior approvals of rear yard setback variances for in ground pools at other properties. In Matter of Blandeburgo v Zoning Board of Appeals of Town of Islip, the Court held that the Zoning Board of Appeals (ZBA) had conducted the proper balancing test and had concluded that the variance from 18 feet to 8.8 feet was substantial, adversely impacted the neighborhood and was self created.

Perhaps the fact that the pool was installed without a permit had something to do with the ZBA determination. But the Court went through the criteria to be applied to a ZBA’s decision and concluded there was a rational basis for the decision. As for the argument that other variances had been granted for rear yard set backs to pools and therefore the ZBA was bound by precedent unless it distinguished the present case from the prior approvals, the Court concluded:

“Contrary to the petitioner’s contention, the ZBA’s granting of two prior applications seeking, inter alia, area variances for rear-yard setbacks of in-ground swimming pools, did not constitute a precedent from which the ZBA was required to explain a departure, because the two prior applications, inter alia, involved lots that were not near the subject property and were located in different zoning districts. Thus, the petitioners failed to establish that either of the two cases in which a variance was granted bore sufficient factual similarity to the subject application so as to require an explanation from the ZBA….”

-Steven M. Silverberg