Development

AppDiv, Second Dept.

(memorandum opinion)

In an 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, rejecting landowner's argument that the zoning board of appeals (ZBA) was obligated to explain the difference in result between this denial and other variance grants.

Landowner sought an area variance, and the ZBA denied the variance, concluding that a grant would result in a detrimental change in the character of the neighborhood, that the requested variance were substantial, and that any hardship was self-created. The board also relied on the effect an ordinance grant would have on the general effectiveness of the zoning ordinance. Landowner then brought this proceeding.

In affirming Supreme Court's denial of the petition, the Appellate Division first held that the ZBA's determination was not arbitrary and capricious, and then rejected landowner's argument that the ZBA had an obligation to explain why it had granted variances in other cases.

The Appellate Division acknowledged that an administrative agency, including a zoning board, has an obligation to give reasons for decisions that depart from past precedent, but the court held that in this case, the other applications were not sufficiently similar to this one to trigger a duty to explain.

ZBA Not Obligated to Explain Difference in Treatment

Matter of Davydov v. Mammina

NYLJ 7/13/12, p. 30, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In an 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, rejecting landowner's argument that the zoning board of appeals (ZBA) was obligated to explain the difference in result between this denial and other variance grants.

Landowner sought an area variance, and the ZBA denied the variance, concluding that a grant would result in a detrimental change in the character of the neighborhood, that the requested variance were substantial, and that any hardship was self-created. The board also relied on the effect an ordinance grant would have on the general effectiveness of the zoning ordinance. Landowner then brought this proceeding.

In affirming Supreme Court's denial of the petition, the Appellate Division first held that the ZBA's determination was not arbitrary and capricious, and then rejected landowner's argument that the ZBA had an obligation to explain why it had granted variances in other cases.

The Appellate Division acknowledged that an administrative agency, including a zoning board, has an obligation to give reasons for decisions that depart from past precedent, but the court held that in this case, the other applications were not sufficiently similar to this one to trigger a duty to explain.