An appellate court found a zoning board was arbitrary when it refused to hear an area variance application for the same property which had been denied an area variance nearly twenty years earlier. On April 25, 2006 the Appellate Division Second Department, in Matter of Moore v. Town of Islip Board of Appeals, held that while a zoning board may decline to rehear an application in the absence of new facts, it may not refuse to hear an application where there has been a substantial change in circumstances.
In this case there was an application to build a house on a substandard lot and a similar application had been denied previously. Yet, there was a new property owner and more importantly the application sought fewer variances and eliminated a proposed two car garage. The Court remitted the matter to the zoning board for reconsideration in view of the Court’s findings.
Interestingly the Court did not point out that when the original application was made the legal criteria for granting an area variance was much more stringent than the present criteria. Perhaps this factor by itself is a sufficient change in circumstances to warrant a rehearing?