Court Upholds ZBA Denial of Area Variances for a House on Long Island

In a recent decision, the New York State Appellate Division, Second Department affirmed the Zoning Board of Appeals’ denial of area variances with respect to a proposed single-family home on a vacant lot in the Town of Brookhaven. Matter of White Birch Circle Realty Corp. v DeChance, 2023 NY Slip Op 00216 (NY App Div 2d Dept 1/18/2023). This case underscores the importance of building a strong factual record and highlights the difficulty of overturning a Zoning Board’s decision on appeal.

In this case, the Court held as follows:

“[The Zoning Board of Appeals] properly weighed the appropriate factors and there was a rational basis for its conclusion that the detriment to the health, safety, and welfare of the neighborhood outweighed the benefit to the petitioner in granting the requested relief… The [Zoning Board’s] conclusion that the requested variances would produce an undesirable change in the character of the neighborhood was supported by evidence showing that the proposed development of the petitioner’s property did not conform to the surrounding development pattern, since none of the surrounding improved residential lots conformed with the proposal as to lot area and only one nearby lot conformed to the proposed lot frontage. The evidence further demonstrated that certain lots of similar size to the property at issue were created out of necessity due to environmental constraints not present on the petitioner’s property. Additionally, the variances requested were substantial, given that six total variances were needed, including lot area and lot frontage variances amounting to 80% and 54% deviations from zoning requirements, respectively. The evidence further showed the availability of feasible alternatives, such as acquisition of adjacent, undeveloped lots.

Based on the foregoing, the Court held that the Zoning Board of Appeals’ determination was not illegal, arbitrary and capricious, or an abuse of discretion, such that the Supreme Court properly denied the developer’s Article 78 Petition and dismissed the proceeding.


For more information on land use, zoning or real estate development issues in New York,  please contact us at (914) 338-8050 or send an e-mail to We look forward to hearing from you.

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