August 25, 2015

In Sacher v. Village of Old Brookville, 124 A.D.3d 902 (2d Dept. 2015), the court upheld the denial of area variances for an accessory building.

On May 8, 2012, the Board of Zoning Appeals of the Village of Old Brookville (ZBA) denied Petitioner’s application for certain area variances for a second-story addition to an accessory building for storage. In a proceeding pursuant to CPLR Article 78 to review the ZBA’s decision, the Nassau County Supreme Court denied the petition and dismissed the proceeding. Petitioner appealed and the judgment was affirmed, with costs.

The Second Department stated in its decision that a zoning board’s decision should be sustained if it is not illegal, arbitrary and capricious. Additionally, in determining whether to grant an area variance, a zoning board is required to apply the balancing test, weighing the benefit to the applicant if the variance is granted against the detriment to the health, safety, and welfare of the neighborhood or community, while also considering the relevant statutory factors.

In this case, based on the evidence presented to the ZBA and a visual inspection of the property, the ZBA determined that granting the proposed variances would be a detriment to the neighborhood, outweighing the benefit of granting the area variances. The ZBA also concluded that the requested variances were substantial in nature and that Petitioner had feasible alternatives, since there were other structures on the property which could provide additional storage space.

Based on the foregoing the court held that the ZBA had a rational basis for its determination and the ZBA applied the correct balancing test and considered the relevant statutory factors. Therefore, the Appellate Court affirmed the Supreme Court’s decision.

If you have any questions about zoning or other real estate matters, please do not hesitate to contact an experienced attorney at (914) 338-8050. For more information about our firm please visit www.betenskylaw.com.