Legal Advisories

Reversal of Fortune for Property Owners

Judicial review of local zoning board determinations is fairly limited. By law, courts may only overturn local zoning board determinations if they are “irrational” and not supported by “substantial evidence.” But these concepts, “irrationality” and “substantiality” are fairly subjective and nebulous. What may be considered rational and substantial evidence by one judge, may seem irrational and insubstantial to another.

A review of the three most recent decisions by the Court of Appeals shows how difficult applying these standards can be for the courts. In each, the Appellate Division, Second Department, invalidated local zoning board determinations because they were not supported by “substantial evidence.” But on appeal, the Court of Appeals reversed all three decisions.

In Retail Property Trust v. Board of Zoning Appeals of Town of Hempstead, the Roosevelt Field Mall sought permission from the Town of Hempstead Board of Zoning Appeals to expand the mall to add a Saks Fifth Avenue store. The mall introduced an expert report showing that the new store would have minimal impact on existing traffic conditions. Objectors to the project introduced their own expert report showing that roads servicing the mall were at or near capacity and that even a minimal increase in traffic would have far- ranging effects.

The Board rejected the mall’s expert report and relied on the expert report of the objectors in denying the application. The trial court affirmed the determination, but the Appellate Division, Second Department, reversed, finding that the Board’s determination was not supported by substantial evidence. The Appellate Division found that the Board should not have credited the objectors’ expert report because in its opinion the report was not supported by “empirical data.”

The Court of Appeals then reversed the Appellate Division. According to the Court of Appeals:

Where substantial evidence exists, a court may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record [citation omitted].

In this case, it appears that the Appellate Division substituted its own judgment for the contrary but equally reasonable determination of the Board of Zoning Appeals. That action was an incursion on the discretion of the Board and cannot be justified where substantial evidence in the record supports the Board’s determination…

Through the reports of objectors’ traffic and air quality experts, the opposition presented valid scientific bases for rejecting the expansion plan, which the Board in its discretion was authorized to credit. The evidence in this case presented a close, fact- specific choice of the kind that local boards are uniquely qualified to make. Giving the Board of Zoning Appeals the deference to which it is entitled under such circumstances, we conclude that it acted rationally and with the support of substantial evidence in denying petitioner’s application…

In Ifrah v. Utschig, a property owner sought to subdivide its already non-conforming residential building lot into two separate non-conforming lots. The property owner required lot area and street frontage variances from the Zoning Board of Appeals of the Town of Harrison before proceeding.

The property owner relied on the fact that 33 of the 39 lots within 500 feet of the parcel were substandard in size, and 20 of those 39 lots were smaller than the smaller of the two lots proposed by the property owner. The Zoning Board of Appeals denied the application, relying on evidence submitted by objecting neighbors that the subdivision would negatively impact the character of the neighborhood: a modern home in a distinctively neo-Tudor neighborhood and a home located 40 feet from another home when average distance between other homes is 50 feet, as well as concerns regarding traffic and parking problems.

The trial court affirmed the determination of the Zoning Board of Appeals, but the Appellate Division, Second Department, reversed, finding that the determination was not supported by substantial evidence. The Appellate Division based its holding on the fact that most of the lots in the area were non-conforming and were similar in size to the lots proposed by the applicant.

On further appeal, the Court of Appeals reversed the Appellate Division, stating that “[l]ocal zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion [citation omitted]. Thus, a determination of a zoning board should be sustained upon judicial review if it has a rational basis and is supported by substantial evidence [citation omitted].”

Finally, in P.M.S. Assets, Ltd. v. Zoning Board of Appeals of the Town of Pleasantville, the applicant purchased a parcel in a residential zone that had previously been used as a pre-existing non-conforming commercial moving and storage business and opened a lighting design and installation business. When the neighbors complained, the Zoning Board of Appeals conducted a hearing and issued a resolution that the applicant had violated the Town Code by operating the Appellate Division, Second Department, affirmed. The Court of Appeals, in reversing the Appellate Division,held that “the determination of a zoning board regarding the continuation of a preexisting non- conforming use must be sustained if it is rational and supported by substantial evidence, even if the reviewing court would have reached a different result [citation omitted].” The Court of Appeals found that the lighting design and installation business was not qualitatively similar to the previous use of the site for moving and storage and therefore the new property owner had exceeded the scope of the prior use.


These cases make clear that when a record of proceedings before a zoning board contains “substantial” evidence in favor of granting an application or “substantial” evidence in favor of denying an application, the board’s determination, whatever it may be, should not be disturbed by a reviewing court even if the court itself would have reached a contrary determination based on the evidence. In other words, when the resolution of the application is a close call, the courts should stay their hand and sustain the judgment of the zoning board. The big winners in these cases are local zoning boards and the big losers were property owners denied development permits by zoning boards. The latter are now more likely to find it more difficult to obtain redress from adverse zoning board decisions in the courts.

Given these cases, it is more important than ever for an applicant to realize that a zoning board hearing is a quasi-judicial proceeding in which it is necessary to present compelling, well documented evidence supported by expert testimony in order to convince the board to grant the application in the first instance. However, if the board denies the application, and court proceedings are required, the best possible record will be preserved for judicial review.

Sahn Ward PLLC

SAHN WARD PLLC’s “Legal Advisory” is published with the intent to inform readers of recent developments in the law. It is not intended, nor should it be used, as a substitute for legal advice or opinion which can be rendered only when related to specific fact situations.

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