Court Upholds Denial of Area Variance Due to Self Created Hardship

In a somewhat unusual decision the Appellate Division, in Matter of Tsunis v. Zoning Board of Appeals of Incorporated Village of Poquott upheld the denial of an area variance citing the zoning board’s finding of self-created hardship. While self created hardship is one of the statutory criteria a zoning board must use in weighing whether to grant an area variance, Village Law also provides at section 7-712-b (3)(b)(5) that in considering self created hardship such “consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.”

As a result of the limiting language in Village Law, zoning boards are often reluctant to use self created hardship as a basis for denying an area variance. In this case the court held : “the ZBA’s determination that the alleged hardship was self-created is supported by the evidence in the record…” and the “determination was not otherwise illegal, arbitrary, or an abuse of the ZBA’s discretion….” Thus, it appears, at least from the decision, that the primary basis for the denial in this case was self created hardship.