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.

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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.

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