variance

The Appellate Division Second Department recently ruled that, under the procedure followed by objecting neighbors, the local Zoning Board of Appeals (“ZBA”) lacked jurisdiction to rule on the neighbors’ objection. In Matter of Capetola v. Town of Riverhead, the Petitioners/Plaintiffs (“Petitioners”), who owned a property nearby the property in contention, had raised an issue as to whether the proposed development required a lot area variance, but had failed to follow the proper procedure for raising such an objection.

The owner of the property seeking a building permit, Edward Hocker, received a denial from the Town Building Inspector, indicating that Hocker needed four area variances in order to obtain a building permit. “At the public hearing concerning Hocker’s application, the petitioners…, who own a house close to the subject parcel, complained that, among other things, Hocker needed a lot size area variance to build on the subject parcel. After the hearing, the ZBA granted Hocker’s application for the four variances. The ZBA also determined that Hocker did not need a lot size area variance.”

Despite Petitioners’ objection at the hearing, claiming that a lot area variance was required, Petitioners had never directly appealed the determination of the building inspector, which determination did not include a finding of the need for a lot area variance.

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The Appellate Division determined that the failure to provide “dollars and cents” proof of the inability to use a property for any permitted use required denial of a use variance. In Matter of Dean v. Town of Poland Zoning Board of Appeals, the owners of approximately 17 acres of land had agreed, subject to obtaining a use variance, to sell two acres of the property for construction of a retail store. Initially, the Zoning Board of Appeals (ZBA) issued the use variance without making any findings. Upon challenge by the Petitioners, who own property nearby, the lower court upheld the issuance of the variance. On appeal, the Appellate Division remanded the matter for the ZBA to make proper findings and held the appeal pending the making of such findings. Thereafter, the ZBA made findings based upon the criteria set forth in Town Law section 267-b [2]. The Appellate Division then reversed the lower court and granted the petition to overturn the determination of the ZBA granting the use variance.

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Articles Posted in variance

Appellate Division Finds ZBA Did Not Have Authority To Rule on Issue of Lot Area

A Use Variance Should Be Denied for Failure to Provide Dollars and Cents Proof of Unnecessary Hardship