Development

In affirming, the Appellate Division emphasized the wide discretion given to ZBAs in making area variance decisions, and also noted that religious institutions are entitled to special accommodation in the zoning process. The court then held that the ZBA was not required to justify its determination with supporting evidence with respect to each of the factors relevant to zoning variances, so long as it rationally balanced the statutory factors.

Supreme Court Improperly Reviewed Merits of Variance Application Matter of Rodriguez v. Weiss NYLJ 4/14/17, p. 25, col. 2 AppDiv, Second Dept. (memorandum opinion)

In landowner's article 78 proceeding challenging denial of a modified use variance, landowner appealed from Supreme Court's denial of the petition. The Appellate Division reversed and annulled the denial, holding that Supreme Court had improperly reviewed the merits of landowner's application.

Landowner owns a two-family residence in a single-family district. Landowner has a use variance permitting the two-family use, subject to the condition that one of the units be owner-occupied. Landowner sought to renew the variance, but without the owner-occupation condition. The Board of Appeals renewed the variance, but retained the owner-occupation requirement. The board did not review the merits of the request to remove the owner-occupation requirement, but instead relied on res-judicata principles. When landowner brought this article 78 proceeding, Supreme Court concluded that the board's reliance on res-judicata principles was unwarranted, but nevertheless denied the petition. Landowner appealed.

In reversing, the Appellate Division noted that neither party challenged Supreme Court's determination that the board's reliance on res judicata was improper. But the Appellate Division then held that once Supreme Court held that use of res judicata was improper, that court should have remitted to the board rather than substituting what it considered to be a more adequate basis for the board's determination. As a result, the Appellate Division itself remitted to the board for further consideration of the variance application.

Procedural Defects Insufficient to Overturn Grant of Area Variance Matter of Wenz v. Brogan NYLJ 4/21/17, p. 28, col. 4 AppDiv, Second Dept. (memorandum opinion)

In neighbor's article 78 proceeding challenging grant of an area variance, neighbor appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the procedural irregularities accompanying the decision by the zoning board of appeals (ZBA) did not warrant setting aside its determination.

When the building inspector denied landowners' application for a building permit to make improvements, landowners applied to the ZBA for an area variance. Neighbor appeared to oppose the application. The ZBA granted the variance, but the meeting's minutes did not record each member's vote. A short-form decision, filed 20 days after the hearing, set forth the vote of each ZBA member, but contained no specific findings as to the factors on which the ZBA based its decision. In accordance with a local law of the village, the short-form decision stated that an aggrieved party could serve a written demand for a long-form decision setting forth findings. Neighbor filed a demand, and the ZBA filed a long-form decision 83 days later. Neighbor then brought this article 78 proceeding, raising both procedural and substantive objections to the ZBA's determination. Supreme Court denied the petition, and neighbor appealed.

In affirming, the Appellate Division first concluded that Village Law section 7-712-a does not preempt the village from regulating the form of ZBA decisions or the time periods during which those decisions must be issued. The court did concede that the ZBA had failed to comply with the village law's requirement that decisions be complied within five days and with statutes requiring that the minutes of the ZBA meeting record the vote of each board member. The court concluded, however, that these procedural defects did not entitle neighbor to set aside the ZBA's decision. In particular, the court noted that the village law did not specify a sanction for failure to file a decision within five days. Turning to the substance of the ZBA's decision, the court concluded that the ZBA had adequately balanced the statutory factors for grant of an area variance.