New Developments in the Law
Even Substantial Area Variances Are Warranted Under The Statutory Balancing Test When There Is no Detriment To The Surrounding Community
By John P. Christopher, Esq.

     More often than not, the Judiciary in New York has taken a �hands off� approach in proceedings commenced under CPLR Article 78 to challenge a zoning board�s determination. In many cases, this has been the court�s position even when it appears the court may have made a different determination than the zoning board. Recently, however, the Appellate Division, Second Department, overturned a zoning board�s denial of six area variances required for a property owner to maintain its two-family home, finding that the board�s determination was irrational based on the record before it. See Matter of Cacsire v. City of White Plains Zoning Bd. of Appeals, 2011 NY Slip Op 06838 (2d Dept. 2011). Could this be a step by the Judiciary toward scrutiny of zoning board decisions?

     In Matter of Cacsire v. City of White Plains Zoning Bd. of Appeals, 2011 NY Slip Op 06838 (2d Dept. 2011), the Petitioners sought judicial review to reverse the Zoning Board of Appeals of the City of White Plains� (�ZBA�) denial of their application for six area variances required to maintain a two family home. The need for area variances arose when the Petitioners were making renovations to the second floor apartment at the property. Although the Petitioners obtained a building permit prior to making the renovations, upon completing the renovations and requesting a certificate of completion, the City informed them that there were inconsistencies in the City�s file and that the Petitioners required area variances to maintain their property�s two family status. Alternatively, the City informed the Petitioners that they could remove the kitchen from the second floor apartment and use the property as a single family home.

     The facts in the record before the ZBA showed that the Petitioners purchased the subject premises in 1993. The house located on the premises was built in or around 1904 and was located in a residential neighborhood zoned for one- and two-family houses. When the Petitioners purchased the house, it was described as a two family in the marketing of the home by the sellers and in the contract of sale. Further, the Petitioners� mortgage was contingent on the two-family status of the home. Upon closing of the transaction for the subject premises, the Petitioners� attorney and the mortgagee concluded that based on the title report and the property�s tax classification, the property was a legal two-family home.

     After a public hearing, the ZBA denied the Petitioners� application for area variances based on, inter alia, its finding that the requested area variances were substantial. The ZBA concluded that if granted, the variances �would produce an undesirable change in the character of the neighborhood, would result in a detriment to the health, safety, and general welfare of the community, and that the petitioner�s hardship was self-created.� Cacsire at 2. Thereafter, the Petitioners commenced a CPLR Article 78 Proceeding to review the ZBA�s denial. However, the Supreme Court denied the petition and dismissed the proceeding.

     On appeal, the Second Department reversed the ZBA�s denial. The Court found that �although the ZBA rationally concluded that the requested variances were substantial, there was no evidence before the ZBA to show that the granting of the variances would have an undesirable effect on the character of the neighborhood, adversely impact physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community [citations omitted].� Cacsire at 2. Specifically, the Court found that the record showed that the subject premises had been used by its residents and taxed by the City as a two-family dwelling for over 50 years. The record also showed that granting the variances would not result in an increase in congestion, traffic, and population to the neighborhood. In fact, many of the properties surrounding the petitioners� property had similar dimensions and physical characteristics and contained two-family dwellings, and there was no community opposition to the petitioners� application. Cacsire at 3.

     In addition, the Court found that there was no evidence in the record to support the ZBA�s finding that the need for variances was a self-created hardship in this case. The Court found that the record showed that the petitioners reasonably believed that the property was legally being used as a two-family residence at the time of purchase and, moreover, that they would suffer great financial hardship if the area variances were not granted. The property was located in an area zoned for one- and two-family houses, was being taxed by the City as a two-family house, and did not have a certificate of occupancy because the house was built before such certificates were issued. Based on a review of the record before the ZBA, its determination that the petitioners� hardship was self-created lacked a rational basis, and was arbitrary and capricious. Cacsire at 3. Thus, the Court found that �the record does not contain sufficient evidence to support the rationality of the ZBA�s determinations denying the proposed area variances [citations omitted] . . . and the Supreme Court should have granted the petition, annulled the ZBA�s determination, and remitted the matter to the ZBA for the issuance of the variances.� Cacsire at 3.

     The Court�s decision in Cacsire is consistent with its decision earlier this year in Matter of Campbell v. Town of Mount Pleasant Zoning Bd. of Appeals, 2011 NY Slip Op 04459 (2d Dept. May 24, 2011), where the Court reversed a zoning board based on the Court�s finding that there was no evidence in the record to support the board�s denial. See our Land Use and Municipal Law Blog post entitled, The Role of �Substantial Evidence� in the Court�s Review of Zoning Board Determinations, for a detailed discussion of the Campbell decision.

     This decision is also consistent with a line of cases holding that under the balancing test, substantiality is only one factor, and even a 100% variance can be approved where there is no show of detriment, e.g. Sexton v. Zoning Bd. of Appeals, 300 A.D.2d 494 (2d Dept. 2002).

     We will continue to provide further updates if any changes occur in this area of the law.