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Court Upholds Area Variance and Rejects Challenge to the Adequacy of the Hearing Notice

In upholding the grant of an area variance, the Appellate Division rejected a challenge to the adequacy of the hearing notice. In the Matter of deBordenave v. Village of Tuxedo Bd. of Zoning Appeals, the Court found that the Zoning Board had properly conducted the balancing test required to grant an area variance. The Court also addressed the more unusual issue of proper notice for one of the variances granted.

Initially, the property owner applied for height and location variances relating to an existing wall on the property. During the course of the review the property owner agreed to also seek a “line of sight” variance.

The line of sight issue  appears to relate to Section 100-18(B) of the zoning code which states: “[n]o wall, fence, shrubbery or other ground condition, growth or structure shall be erected, altered or maintained which may cause danger by reducing the vehicular line of sight to less than 250 feet.”

In rejecting the claim that the public notice was inadequate the Court held:

”…petitioner’s contention that the BZA did not acquire jurisdiction over the “line of sight” variance because El-Rayess did not formally apply for such a variance is without merit, as the BZA’s rules of procedure are not jurisdictional in the sense that the petitioner seeks to use that term (see Matter of Gaona v Town of Huntington Zoning Bd. of Appeals, 106 AD2d 638, 640). Furthermore, we reject the petitioner’s contention that the notice of hearing was insufficient to apprise the public of the “line of sight” variance. As the Supreme Court correctly found, the published notice of hearing referenced section 100-18 of the Code of the Village of Tuxedo Park, which was sufficient to fairly apprise the average interested citizen, including the petitioner, that the “line of sight” variance was being sought.”

What is interesting about this determination is that the cited section 100-18 has several subsections. For example, other sections deal with the permitted height and location of walls and fences. Section 100-18 (B) deals solely with the issue of line of sight for a referenced wall.  The  Court acknowledges there was no formal application for the line of sight variance. Therefore, if an interested party received notice of the hearing and reviewed the filed application, neither of which mentioned  the line of sight variance according to the statements in this decision, it would appear there would be no actual notice that a line of sight variance was also being contemplated.

Yet, the Court found the notice was adequate.

In other respects the decision is a standard review of area variances. In reviewing the record the Court noted:

”…determining whether to grant an area variance, a zoning board of appeals is required to engage in a balancing test weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community (see Village Law § 7-712-b[3][b]; Matter of Conway v Van Loan, 152 AD3d 768, 769; Matter of Nataro v DeChance, 149 AD3d 1081, 1082). In making that determination, the zoning board must 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]; see Matter of Colin Realty Co., LLC v Town of N. Hempstead, 24 NY3d 96, 103; Matter of Wambold v Village of Southampton Zoning Bd. of Appeals, 140 AD3d 891, 892-893; Matter of Kaufman v Incorporated Vil. of Kings Point, 52 AD3d 604, 608).”

Perhaps because the Court found the claims to be otherwise without merit, it determined that overturning the variances on a highly technical notice claim ultimately would serve no useful purpose. Clearly, not much would be accomplished, other than to create more litigation that would ultimately lead to the variances being upheld, after a new notice and new hearings.

Steven Silverberg

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