If the legal grounds are not raised before the ZBA, it cannot be raised in Article 78 for the first time.

Decision on appeal holding that basis for exemption not raised before the ZBA when it denied variance request, may not be raised in Article 78 proceeding.


Owner of a ten thousand square-foot lot applied for a building permit for a residence in a district requiring forty thousand square feet. When the application was denied, the owner applied to the zoning board of appeals (ZBA) for variances from the dimensional requirements. The owner did not argue before the ZBA that the dimensional requirements were inapplicable based on an exception in the local code. The exception was raised, however, in an Article 78 proceeding brought by the owner after the ZBA denied the application for variances. The trial court ruled in the owner's favor, but on appeal, the appellate court reversed, saying that the Article 78 proceeding can only review the decision of the ZBA, not issues which had not been presented to the ZBA.

LOADING PDF: If there are any problems, click here to download the file.

Reference Info:Decision | State, 2nd Circuit, New York | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Reuben Ortenberg, Woods Oviatt Gilman, LLP | Attorney Advertising

Written by:


Woods Oviatt Gilman, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.