Development

Supreme Ct., Nassau Cty.

(Winslow, J.)

Landowners brought an article 78 proceeding challenging denial of a variance from the zoning ordinance's floor area ratio (FAR) requirements. The court granted the petition, holding that the village board had not established that the requested variance would have any undesirable effect on the neighborhood.

The FAR requirements applicable to landowners' parcel would permit a residential home with a floor area of 4642 square feet. Landowners' existing building has a floor area of 4715 square feet, making the building nonconforming. In early 2012, landowners submitted a variance application to perform renovations that would enlarge the existing home, increasing the nonconformity from 73 square feet to 1308 square feet, yielding a proposed FAR of .512 in a district where the maximum permitted FAR is .40. When the building inspector denied a permit, and the zoning board of appeals (ZBA) denied a variance from the FAR, landowners submitted a revised application which reduced the FAR largely by reducing the height of the attic ceiling from seven feet, ten inches to six feet, five inches, so that the attic space would not be included in the FAR calculations.

Even with the alteration of the attic space (which included three bedrooms and a bathroom), the new proposal exceeded the FAR maximum by 184 square feet ' 111 square feet more than the current structure. As a result, landowners applied for a variance. At the hearing, landowners presented testimony from an appraiser who indicated that the modification to the house would increase the value of neighboring homes, and testimony from 21 neighboring homeowners, all of whom spoke in support of the application. No community members submitted oral or written comments in opposition.

Nevertheless, the ZBA denied the variance application, contending that the variance would be substantial and that the proposed home would create an undesirable change in the character of the neighborhood because of excess bulk and a crowded appearance.' Landowners then brought this article 78 proceeding.

In granting the petition, the court conceded that local boards have considerable discretion in evaluating variance applications, but the court questioned the basis for the ZBA's conclusion that the alterations would result in an undesirable change in neighborhood character. The court concluded that the ZBA's statements in support of its conclusion were conclusory and unsubstantiated by reference to relevant supported hearing facts. The court termed the ZBA's reference to massing, bulk, and crowding “amorphously referenced concepts,” and emphasized the absence of community opposition to the renovation.' As a result, the court remitted the matter to the boar for the issuance of the requested FAR variance.

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FAR Variance Denial Overturned for Lack of Evidence of Undesirable Effect on Neighbors

Leibowitz v. Village of Kensington

NYLJ 7/24/13, p. 21, col. 1

Supreme Ct., Nassau Cty.

(Winslow, J.)

Landowners brought an article 78 proceeding challenging denial of a variance from the zoning ordinance's floor area ratio (FAR) requirements. The court granted the petition, holding that the village board had not established that the requested variance would have any undesirable effect on the neighborhood.

The FAR requirements applicable to landowners' parcel would permit a residential home with a floor area of 4642 square feet. Landowners' existing building has a floor area of 4715 square feet, making the building nonconforming. In early 2012, landowners submitted a variance application to perform renovations that would enlarge the existing home, increasing the nonconformity from 73 square feet to 1308 square feet, yielding a proposed FAR of .512 in a district where the maximum permitted FAR is .40. When the building inspector denied a permit, and the zoning board of appeals (ZBA) denied a variance from the FAR, landowners submitted a revised application which reduced the FAR largely by reducing the height of the attic ceiling from seven feet, ten inches to six feet, five inches, so that the attic space would not be included in the FAR calculations.

Even with the alteration of the attic space (which included three bedrooms and a bathroom), the new proposal exceeded the FAR maximum by 184 square feet ' 111 square feet more than the current structure. As a result, landowners applied for a variance. At the hearing, landowners presented testimony from an appraiser who indicated that the modification to the house would increase the value of neighboring homes, and testimony from 21 neighboring homeowners, all of whom spoke in support of the application. No community members submitted oral or written comments in opposition.

Nevertheless, the ZBA denied the variance application, contending that the variance would be substantial and that the proposed home would create an undesirable change in the character of the neighborhood because of excess bulk and a crowded appearance.' Landowners then brought this article 78 proceeding.

In granting the petition, the court conceded that local boards have considerable discretion in evaluating variance applications, but the court questioned the basis for the ZBA's conclusion that the alterations would result in an undesirable change in neighborhood character. The court concluded that the ZBA's statements in support of its conclusion were conclusory and unsubstantiated by reference to relevant supported hearing facts. The court termed the ZBA's reference to massing, bulk, and crowding “amorphously referenced concepts,” and emphasized the absence of community opposition to the renovation.' As a result, the court remitted the matter to the boar for the issuance of the requested FAR variance.

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