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Zoning Board Improperly Applied the Abandoned Practical Difficulty Test to Area Variance

The Appellate Division had to once again remind a Zoning Board of Appeals that practical difficulty is no longer the test for an area variance. In Matter of Mimassi v. Town of Whitestown Zoning Board of Appeals, the Appellate Division reversed, in part, the lower court’s dismissal of the petition to review the Zoning Board’s denial of an area variance.

There were two parts to the Petitioner’s claims. The first was that the Zoning Board failed to follow precedent. The Court denied that portion of the claim. “Petitioner failed to establish that respondent’s determination on another application was based on essentially the same facts as petitioner’s present application (see Matter of 194 Main, Inc. v Board of Zoning Appeals for Town of N. Hempstead, 71 AD3d 1028, 1030; see generally Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 93; Knight v Amelkin, 68 NY2d 975, 977).”

However, the Court reversed the lower court on the second prong of the Petition and remitted the matter for further findings, noting that the Zoning Board had failed to apply the appropriate balancing test to the area variance application.

“Here, respondent based its determination upon factors and other criteria relevant to the former “practical difficulty” test, which is no longer followed, rather than on the factors set forth in Town Law § 267-b (3) (b) (see Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d 395, 402; Matter of Sasso v Osgood, 86 NY2d 374, 384). Inasmuch as respondent failed to engage in the necessary balancing test, we vacate the determination, and we remit the matter to respondent for a de novo determination (see Matter of Nye v Zoning Bd. of Appeals of Town of Grand Is., 81 AD3d 1455, 1456; Matter of Fusco v Russell, 283 AD2d 936, 936). We have considered petitioner’s remaining contentions and conclude that they are without merit.”

-Steven Silverberg