New York Zoning and Municipal Law Blog
The Appellate Division reversed the Supreme Court and reinstated the determination by a Zoning Board of Appeals (ZBA) to deny area variances for an accessory structure in a front yard. In Matter of Kramer v. Zoning Board of Appeals of the Town of Southampton, the Court upheld the denial of area variances sought by the Petitioners, after they had completed construction.
Petitioners had constructed a barbecue, sink, cabinets, counter top and refrigerator in their front yard. When they subsequently applied for a building permit they were told they needed variances to permit what was essentially an accessory kitchen in the front yard. The ZBA denied the application finding: “…granting the requested variances would produce an undesirable change in the character of the neighborhood, that the variances were substantial, that the petitioners could use a portable unit as a feasible alternative, and that any hardship was self-created (see Town Law § 267-b[3][b]).”
In reversing the lower court and upholding the decision of the ZBA the Court noted:
“In determining whether to grant an application for an area variance, a zoning board must 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 if the variance is granted (see Town Law § 267-b[3][b]; …. The zoning board, in applying the balancing test, is not required to justify its determination with supporting evidence for each of the five statutory factors as long as its determination balancing the relevant considerations is rational….”
Petitioners also argued that three prior variances issued to other applicants create a binding precedent that mandated the issuance of the variance to Petitioners. The Court disagreed finding: “…petitioners failed to establish that the applications that led to those determinations bore sufficient factual similarity to the subject application….”