New York Zoning And Municipal Law Blog

A court may not require a town board to reach a determination on, or even consider an application for a zoning change. In Matter of Richard M. Wolff v. Town/Village of Harrison, the Appellate Division Second Department dismissed petitioner’s request for judgment compelling the town board to reach a determination on the petitioner’s application for a zoning change as soon as reasonably possible.

The petitioner had applied for a zone change and the town board had refused to make a decision on the request. The petitioner commenced an Article 78 proceeding seeking to compel the town board to make a decision on the requested zone change. The court reasoned that the petitioner’s Article 78 proceeding could only be brought to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought (writ of mandamus). Since the amendment of a zoning ordinance is a purely legislative function, a court may not compel a board to consider or decide upon a zoning change by ordering a writ of mandamus. In addition, the court recognized that the statute establishing the procedure for zone changes vests broad legislative power in a town board and does not require the board to vote upon every application for a zoning change.

In a CPLR Article 78 proceeding, an appellate court held that where a zoning board provides a rational explanation for denying a variance, the determination will not be viewed as either arbitrary or capricious even if a variance has been granted to another property on similar facts. In Matter of Ronald Berk v .Richard McMahon, the Appellate Division Second Department upheld the Zoning Board of the Village of Southampton’s refusal to grant a wetlands special permit and area variances.

The appellate court considered the zoning board’s reasoning in upholding its action. In determining whether to grant an area variance, the board engaged the required balancing test, weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community in the event the variance is granted. The board also satisfied a statutory requirement by examining whether (1) an undesirable change in the character of the neighborhood will result, or a detriment to nearby properties will be created by the granting of the area variance, (2) the benefit sought by the applicant can be achieved by some feasible method, other than an area variance, (3) the required area variance is substantial, (4) the proposed variance will have an adverse impact on environmental conditions in the neighborhood or district, and (5) the alleged difficulty was self-created.

Supplying a rational explanation for refusing to grant a variance is therefore sufficient to validate the action; the board is not required to grant the variance solely because one has been granted in the jurisdiction in similar circumstances. Judicial review of a board decision is limited in scope to a determination of whether the board’s action violated lawful procedure, was affected by an error of law or was arbitrary and capricious, or an abuse of discretion. In this instance the court upheld the Southampton Board decision based on a finding that it has some objective factual basis in the record and did not entirely rest on subjective considerations.

A zoning board may consider public safety when interpreting a zoning ordinance but must also look at the meaning of the ordinance, noted the Appellate Division, Second Department in Matter of Northern Dutchess Rod and Gun Club v. Town of Rhinebeck. The Rod and Gun Club sought to place trap shooting within 300 feet of a road. The local ordinance provides that if such uses are closer than 500 feet to the “property boundary” a variance is required. The Zoning Enforcement Officer determined that since the property was bisected by a road, the road was not the property boundary. Therefore the proposed use was not within 500 feet of a property boundary and did not require a variance.

On appeal by other property owners to the zoning board of appeals, the board determined that a variance was required and stated: “the issue of public safety takes precedence over the issue of what constitutes a property boundary”. The Appellate Division noted that when an ordinance is ambiguous a zoning board may take into consideration public safety in reaching an interpretation. Yet the Court found that in this instance there was a failure to interpret the term property boundary. The Court remitted the matter to the Zoning Board for further consideration

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?