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Court Upholds Denial of Area Variances

The Appellate Division upheld the denial of area variances to permit the legalization of an addition to an accessory structure. In the Matter of Sacher v. Village of Old Brookville, the Court and the Zoning Board appear to have been influenced by the fact that the applicant had constructed the addition without benefit of a permit.

After stating the general rule that judicial review of the decisions of a zoning board are limited to “whether the action taken by the board was illegal, arbitrary, or an abuse of discretion,” the Court then reviewed the balancing test the zoning board must consider.

” A zoning board must also consider “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” (Village Law § 7-712-b[3][b]).”

Noting that the members of the zoning board may also rely upon there own observations, the Court analyzed the conclusions of the Zoning Board, finding:

“The evidence before the Board and the Board’s visual inspection of the property supported its conclusion that granting the proposed variances would be a detriment to nearby properties and produce an undesirable change in the character of the neighborhood. Additionally, the Board rationally concluded that the requested variances were substantial in nature and that the petitioners had a feasible alternative to increasing the size of the accessory building, since there were other structures on the petitioners’ property which could provide additional storage space. Likewise, the petitioners’ hardship was self-created in that they completed the additions to the accessory building without obtaining a building permit (see Matter of Caspian Realty, Inc. v Zoning Bd. of Appeals of Town of Greenburgh, 68 AD3d 62, 77; Matter of Merlotto v Town of Patterson Zoning Bd. of Appeals, 43 AD3d 926, 930-931; Matter of Becvar v Scheyer, 250 AD2d 842, 843). Contrary to the petitioners’ contention, the Board “was entitled to consider the effect its decision would have as a precedent” (Matter of Gallo v Rosell, 52 AD3d 514, 516).”

-Steven Silverberg