August 20, 2015

In Mimassi v. Town of Whitestown Zoning Board of Appeals, 124 A.D.3d 1329, 997 N.Y.S.2d. 888 (4th Dept. 2015), the Court upheld area variances with respect to precedent but reversed the Zoning Board of Appeals’ (ZBA) denial for failure to properly apply the balancing test.

The Respondent ZBA denied Petitioner’s application for an area variance and Petitioner commenced a CPLR Article 78 proceeding to annul the ZBA’s determination.

Petitioner argued that the determination was arbitrary and capricious because Respondent failed to adhere to its precedent. The court rejected Petitioner’s contention because Petitioner failed to establish that Respondent’s determination on another application was based on the same facts as Petitioner’s application.

However, the court found that Respondent ZBA erroneously applied the old “practical difficulty” standard and failed to apply the correct balancing test (weighing the benefit to the applicant if the variance is granted against any detriment to the health, safety, and welfare of the neighborhood or community) using the factors set forth in the current Town Law. Therefore, the judgment appealed from was unanimously reversed on the law without costs, the petition was granted in part, the determination was vacated, and the matter was remitted to the Respondent ZBA for a de novo determination of the application.

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