Reversal of Zoning Board’s Denial of Variance Application Upheld on Appeal

Farrell Fritz, P.C.
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In Matter of O’Connor and Son’s Home Improvement, LLC v. Acevedo, et al., the petitioner, O’Connor and Son’s Home Improvement, LLC (“Petitioner”), owns a 120-foot by 57-foot parcel of property (the “Property”) located in the City of Long Beach (the “City”) on Long Island, which it purchased in 2015.  In or around June, 2016, Petitioner submitted an application to the City’s Zoning Board of Appeals (the “ZBA”) to subdivide the Property into two equal-size lots of 60 feet by 57 feet.  However, the City’s zoning code requires a minimum lot size of 80 feet by 57 feet for each of the two proposed parcels in Petitioner’s application.  Thus, Petitioner sought area variances to permit the lot sizes of 60’ x 57’, as proposed in the application.

At the ZBA hearing, Petitioner argued, inter alia, that its two proposed structures were consistent with most of the other homes in the neighborhood, while one larger structure on the undivided single lot was not.  However, before Petitioner’s counsel could continue offering arguments in support of the application, members of the ZBA expressed their opposition thereto, with one member even going as far as to accuse Petitioner’s counsel of negligence for not having an engineer inspect the Property.

Petitioner’s main argument centered on the fact that prior to its application, the ZBA granted variances to another property located in the same zoning district and nearly identical to Petitioner’s Property, permitting the subdivision of that property into two separate lots.  Additionally, Petitioner pointed out that more than half of the houses on the same street as its Property have frontages less than 60 feet.  Therefore, Petitioner argued that its two proposed lots with 60-foot dimensions would not change the character of the neighborhood.

After Petitioner’s counsel concluded its argument to the ZBA, members of the public were given the opportunity to be heard.  The public overwhelmingly opposed the application, arguing, inter alia, that the proposed variances would cause parking problems and diminish home values.

The ZBA ultimately denied Petitioner’s application.  Petitioner then commenced an Article 78 proceeding challenging that denial.  The Court granted the petition, annulling the ZBA’s determination and directing issuance of the variances.  The ZBA appealed to the Appellate Division, Second Department.

Although local zoning boards are afforded broad discretion in deciding land use applications, a reviewing court may set aside such determination “‘where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure’ (Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613).”  Further, “‘[a] decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious,’ and thus, ‘[w]here an agency reaches contrary results on substantially similar facts, it must provide an explanation’ (Matter of Nicolai v McLaughlin, 163 AD3d 572, 574 . . .).”

The ZBA’s determination lacked facts sufficient to justify its denial of the application.  In particular, the ZBA failed to reconcile its denial of the variances here with its grant of variances to a different applicant in a nearly identical prior application.  Additionally, the Court held that the ZBA’s findings were based on general community opposition to Petitioner’s application not corroborated by any evidence, which is an insufficient basis for denial.  Accordingly, the Second Department affirmed the lower court’s Decision and Order annulling the ZBA’s determination and directing the ZBA to issue the variances.

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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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