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Appellate Division Reinstates Area Variance

Peter J. Weishaar Author Photo
Peter J. Weishaar
Nov 29, 2021
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After the Brighton Zoning Board of Appeals (the “ZBA”) granted an area variance to construct an addition with less setback than required, neighbors successfully challenged the decision in an Article 78 Proceeding.  The trial court agreed with the neighbors and annulled the ZBA’s determination to grant the variance.  Last month, in an appeal by the ZBA, the Appellate Division unanimously reversed, dismissing the neighbor’s Article 78 Petition, and reinstating the variance.

In determining whether to grant an area variance, a ZBA is required to weigh the benefit to the applicants of granting the variance against any detriment to the health, safety and welfare of the neighborhood or community affected thereby, taking into account the five factors set forth in Town Law § 267-b (3)(b).  The five factors are:

(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance;

(2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;

(3) whether the requested area variance is substantial;

(4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and

(5) whether the alleged difficulty was self-created.

The trial court had based its decision, in part, on its conclusion that the ZBA failed to consider the fifth factor, nothing that the difficulty was clearly self-created in this case. 

In reversing the trial court, the Appellate Division noted that “A zoning board of appeals is not required to justify its determination with supporting evidence with respect to each of the five factors, so long as its ultimate determination balancing the relevant considerations was rational."  Gasparino v. Town of Brighton Zoning Board of Appeals, 2021 N.Y. App. Div. LEXIS 6346 at *2-3 (4th Dep’t 2021).   The Appellate Division also held that the trial court erred in concluding that the ZBA failed to undertake the required analysis and that the ZBA’s determination lacked a rational basis.

The Appellate Division held that the administrative record established that the ZBA did consider the five statutory factors, including whether the alleged difficulty was self-created, noting that whether the alleged difficulty was self-created does not necessarily preclude the granting of an area variance.  [Town Law § 267-b(3)(b)].

Finally, the Appellate Division also chided the trial court for substituting its judgment for that of the ZBA, noting that it was error to do so “even if such a contrary determination is itself supported by the record.”  Gasparino, 2021 N.Y. App. Div. LEXIS 6346 at *3.

With the dismissal of the neighbor’s petition, the area variance was reinstated.

If you would like to schedule a consultation to discuss zoning or land use matters, please contact Peter J. Weishaar, Esq. at or 585.512.3542.  Mr. Weishaar’s municipal practice includes the ongoing representation of planning and zoning boards, as well as the representation of municipalities as special counsel in litigation matters.  He has also served as counsel to applicants and neighbors concerned about projects before planning and zoning boards.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

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