Development

Area Variance Determination Supported By Substantial Evidence

Matter of DiPaci v. Zoning Board of Appeals

NYLJ 2/6/04, p. 28, col. 2

AppDiv, Second Dept

(memorandum opinion)

In landowner's article 78 proceeding to annul the Zoning Board's denial of an area variance, landowner appealed from Supreme Court's dismissal of the proceeding. The Appellate Division affirmed, holding that the determination of the zoning board had a rational basis.

Landowner sought to subdivide a 97,900 square-foot parcel into three separate substandard lots. (The zoning district requires that each lot contain at least 40,000 square feet). The zoning board of appeals denied an area variance, concluding that the variance was substantial and would have an impact on the character of the neighborhood. Supreme Court then denied landowner's article 78 petition.

In affirming, the Appellate Division emphasized that local zoning boards have broad discretion in considering variance applications, and that judicial review is limited to determining whether a board's action is illegal, arbitrary, or an abuse of discretion. Here, the variance would have created lots substantially smaller than the required minimum, and the subdivision would change the character of the neighborhood. As a result, the zoning board's determination was supported by substantial evidence.

Area Variance Determination Supported By Substantial Evidence

Matter of DiPaci v. Zoning Board of Appeals

NYLJ 2/6/04, p. 28, col. 2

AppDiv, Second Dept

(memorandum opinion)

In landowner's article 78 proceeding to annul the Zoning Board's denial of an area variance, landowner appealed from Supreme Court's dismissal of the proceeding. The Appellate Division affirmed, holding that the determination of the zoning board had a rational basis.

Landowner sought to subdivide a 97,900 square-foot parcel into three separate substandard lots. (The zoning district requires that each lot contain at least 40,000 square feet). The zoning board of appeals denied an area variance, concluding that the variance was substantial and would have an impact on the character of the neighborhood. Supreme Court then denied landowner's article 78 petition.

In affirming, the Appellate Division emphasized that local zoning boards have broad discretion in considering variance applications, and that judicial review is limited to determining whether a board's action is illegal, arbitrary, or an abuse of discretion. Here, the variance would have created lots substantially smaller than the required minimum, and the subdivision would change the character of the neighborhood. As a result, the zoning board's determination was supported by substantial evidence.