Development

Landowner Did Not Demonstrate That Board Had Acted Inconsistently

Matter of Matejko v. Board of Zoning Appeals

NYLJ 11/1/10, p. 25, col. 3

AppDiv., Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of area variances, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the BZA's determination had a rational basis.

Landowner sought area variances from lot frontage requirements to subdivide a parcel into two “flag lots.” The BZA found, based on hearing testimony and documentary evidence, that the variances were substantial, would result in detriment to nearby properties, and would have an adverse effect on neighborhood conditions. The BZA also found that the landowner's difficulty was self-created because he purchased the property while the zoning regulations were already in effect. As a result, the BZA denied the variances. Landowner brought this proceeding, and Supreme Court dismissed the petition.

In affirming, the Appellate Division noted that judicial review is limited to determining whether the BZA's determination was arbitrary and capricious, and the court held that it was not. In making that determination, the court rejected landowner's claim that the BZA's approval of another subdivision into flag lots in 1999 made this determination arbitrary. The court concluded that landowner had not demonstrated that the BZA had reached a different result on essentially the same facts.

COMMENT

For a court to sustain a zoning board's denial of a variance when the board had previously granted variances in similar situations, the board must provide a rational basis for the difference in treatment. For instance, in Campo Grandchildren Trust v. Colson, 39 A.D.2d 746, the court overturned a variance denial because the board provided no evidence for its contention that adverse changes in circumstances warranted a departure from the grant of a previous variance application. Similarly, in Mobil Oil Corp. v. Village of Mamaroneck Board of Appeals, 293 A.D.2d 679, the court overturned denial of an area variance permitting a canopy over service station pumps because the zoning board of appeals had not offered a rational explanation for why it had granted a similar application to a different service station.

Courts, however, are reluctant to conclude that current circumstances are so similar to those surrounding a past application that the board has an obligation to explain a disparity in result. For instance, in West Olive, LLC v. Zoning Board of Appeals, 2009 NY Misc LEXIS 5304, the court held that the fact that the ZBA had granted other variances from an off-street parking requirement was insufficient to establish that denial of petitioner's variance application was arbitrary and capricious.

In addition to state law prohibitions on arbitrary actions by zoning boards, a landowner may invoke the Supreme Court's opinion in Village of Willowbrook v. Olech, 528 U.S. 562, to support a “class of one” equal protection claim when the municipality intentionally treats a landowner differently from other similarly situated landowners. Although the Court of Appeals has recognized Olech's application to zoning cases, Olech claims, like state law claims, may founder because courts are unlikely to conclude that current landowner's situation was sufficiently similar to those who have received more favorable treatment. For instance, in the companion case to Bower Associates, Appellant, v. Town of Pleasant Valley, 2 N.Y.3d 617, the Court of Appeals rejected Home Depot's selective enforcement equal protection claim, concluding that Home Depot's application, which would have required widening of a county road for a traffic influx, was not comparable to applications that required permits for road work by the New York State Thruway Authority, a curb cut, digging up pavement to install a domestic water service, closing the entrance of a driveway, or installing a water service pipe.

Variance Denial Upheld

Matter of Petikas v. Baranello

NYLJ 11/9/10, p. 32, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of an area variance, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that a zoning board of appeals (ZBA) need not justify a variance denial with supporting evidence with respect to each statutory factor.

Landowner sought area variances to permit him to subdivide its land into three 50-foot wide building lots even though the applicable zoning ordinance requires each lot to be at least 70-feet wide. The ZBA denied the variances, noting that the variances were substantial and would have an impact on the character of the neighborhood because a majority of properties in the area conformed to the zoning requirements. The ZBA also noted that landowner could make a profit by building two conforming homes on the property. Landowner then brought this article 78 proceeding. After Supreme Court's dismissal of the proceeding, landowner appealed.

In affirming, the Appellate Division noted that the ZBA had balanced the relevant factors and had rationally concluded that the detriment to the neighborhood outweighed any benefit to landowner. The court emphasized that a ZBA need not explicitly justify its determination by reference to supporting evidence on each factor listed in the area variance statute (Town Law sec. 267-b(3)(b)).

Landowner Did Not Demonstrate That Board Had Acted Inconsistently

Matter of Matejko v. Board of Zoning Appeals

NYLJ 11/1/10, p. 25, col. 3

AppDiv., Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of area variances, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the BZA's determination had a rational basis.

Landowner sought area variances from lot frontage requirements to subdivide a parcel into two “flag lots.” The BZA found, based on hearing testimony and documentary evidence, that the variances were substantial, would result in detriment to nearby properties, and would have an adverse effect on neighborhood conditions. The BZA also found that the landowner's difficulty was self-created because he purchased the property while the zoning regulations were already in effect. As a result, the BZA denied the variances. Landowner brought this proceeding, and Supreme Court dismissed the petition.

In affirming, the Appellate Division noted that judicial review is limited to determining whether the BZA's determination was arbitrary and capricious, and the court held that it was not. In making that determination, the court rejected landowner's claim that the BZA's approval of another subdivision into flag lots in 1999 made this determination arbitrary. The court concluded that landowner had not demonstrated that the BZA had reached a different result on essentially the same facts.

COMMENT

For a court to sustain a zoning board's denial of a variance when the board had previously granted variances in similar situations, the board must provide a rational basis for the difference in treatment. For instance, in Campo Grandchildren Trust v. Colson, 39 A.D.2d 746, the court overturned a variance denial because the board provided no evidence for its contention that adverse changes in circumstances warranted a departure from the grant of a previous variance application. Similarly, in Mobil Oil Corp. v. Village of Mamaroneck Board of Appeals, 293 A.D.2d 679, the court overturned denial of an area variance permitting a canopy over service station pumps because the zoning board of appeals had not offered a rational explanation for why it had granted a similar application to a different service station.

Courts, however, are reluctant to conclude that current circumstances are so similar to those surrounding a past application that the board has an obligation to explain a disparity in result. For instance, in West Olive, LLC v. Zoning Board of Appeals, 2009 NY Misc LEXIS 5304, the court held that the fact that the ZBA had granted other variances from an off-street parking requirement was insufficient to establish that denial of petitioner's variance application was arbitrary and capricious.

In addition to state law prohibitions on arbitrary actions by zoning boards, a landowner may invoke the Supreme Court's opinion in Village of Willowbrook v. Olech, 528 U.S. 562, to support a “class of one” equal protection claim when the municipality intentionally treats a landowner differently from other similarly situated landowners. Although the Court of Appeals has recognized Olech's application to zoning cases, Olech claims, like state law claims, may founder because courts are unlikely to conclude that current landowner's situation was sufficiently similar to those who have received more favorable treatment. For instance, in the companion case to Bower Associates, Appellant, v. Town of Pleasant Valley, 2 N.Y.3d 617, the Court of Appeals rejected Home Depot's selective enforcement equal protection claim, concluding that Home Depot's application, which would have required widening of a county road for a traffic influx, was not comparable to applications that required permits for road work by the New York State Thruway Authority, a curb cut, digging up pavement to install a domestic water service, closing the entrance of a driveway, or installing a water service pipe.

Variance Denial Upheld

Matter of Petikas v. Baranello

NYLJ 11/9/10, p. 32, col. 3

AppDiv, Second Dept.

(memorandum opinion)

In landowner's article 78 proceeding challenging denial of an area variance, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that a zoning board of appeals (ZBA) need not justify a variance denial with supporting evidence with respect to each statutory factor.

Landowner sought area variances to permit him to subdivide its land into three 50-foot wide building lots even though the applicable zoning ordinance requires each lot to be at least 70-feet wide. The ZBA denied the variances, noting that the variances were substantial and would have an impact on the character of the neighborhood because a majority of properties in the area conformed to the zoning requirements. The ZBA also noted that landowner could make a profit by building two conforming homes on the property. Landowner then brought this article 78 proceeding. After Supreme Court's dismissal of the proceeding, landowner appealed.

In affirming, the Appellate Division noted that the ZBA had balanced the relevant factors and had rationally concluded that the detriment to the neighborhood outweighed any benefit to landowner. The court emphasized that a ZBA need not explicitly justify its determination by reference to supporting evidence on each factor listed in the area variance statute (Town Law sec. 267-b(3)(b)).