B. Standard of Review

• Jurisdiction: New York

B. Standard of Review

The ZBA, in determining whether to grant an area variance, is required to balance the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood if the variance is granted.²⁸¹ In applying this "balancing test," the ZBA is also obligated to consider the following:

1. whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance;

2. whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;

3. whether the requested area variance is substantial;

4. whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and

5. whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.²⁸²

If the ZBA finds that this balancing test weighs in favor of granting the variance, it must grant the minimum variance necessary to relieve the hardship.²⁸³ In determining what is the minimum variance necessary, the ZBA is directed to balance the variance granted against "the character of the neighborhood and the health, safety and welfare of the community."²⁸⁴

Thus, if the ZBA elects to grant a variance, it is required to perform two balancing tests. First, it balances the five factors above to determine whether a variance should be granted at all. If the ZBA finds that this first balance weighs in favor of granting the variance, it must strike a second appropriate balance, applying the second group of statutory criteria in granting only the minimum variance necessary.

The intent of the second "balancing" provision is to allow the ZBA to craft its grant of variances in accordance with the relief that is truly warranted under the circumstances. Practically speaking, this means that applicants who successfully carry their burden of proof on the first set of balancing criteria are not necessarily entitled to the entirety of the relief requested. For example, consider a situation where an applicant applies for a 15-foot variance from a 30-foot side setback in a neighborhood where most homes are at least 20 feet from the side lot line. The ZBA might conclude that, on balance, granting a 15-foot variance would deviate significantly from the character of the neighborhood and thus might approve only a 10-foot variance.

In approving variance applications, the ZBA is authorized to impose "such reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property."²⁸⁵ Such conditions are subject to the additional requirement that they be "consistent with the spirit and intent of the zoning ordinance or local law" and "imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community."²⁸⁶ The ZBA's authority to impose conditions is limited.²⁸⁷

1. Neighborhood Character

The threshold question in any variance review involves an analysis of the potential impact of the proposed use on the character of the neighborhood.²⁸⁸ In considering this initial factor, the ZBA is entitled, upon proper disclosure to the parties, to rely on its personal knowledge of a site and neighborhood in arriving at variance decisions.²⁸⁹ Since opinions will certainly differ on what constitutes the "character" of a neighborhood for variance purposes, any community conditions considered critical by any party should be identified and documented in the record.

For example, in rural or undeveloped areas, a description of the site and surrounding neighborhood, together with a summary of current and likely future development trends, would be useful to illustrate the existence (or lack) of potential adverse impact(s) on neighborhood character. In highly developed or densely populated areas, a survey of existing build conditions might be more relevant, particularly where the variance use does (or does not) involve a significant departure from prevailing development trends in the vicinity.²⁹⁰ Other relevant areas of inquiry might include traffic and parking conditions, topography, vegetative conditions, nature and proximity of community services, and requirements for
water supply and waste treatment.²⁹¹

In Wilson v. Town of Mohawk,²⁹² the Appellate Division, Third Department upheld the annulment of a denial of area variance for placement of a single-family manufactured housing unit, in part because the "closest neighboring residence was located approximately 150 feet from [the applicant's land] and the overall effect on the neighborhood was so minuscule that, absent a survey, the ZBA was unable to determine whether there was any violation at all."²⁹³

Similarly, in Baker v. Brownlie,²⁹⁴ the Appellate Division, Second Department annulled a denial of an area variance for construction of a west-facing patio that would overlook a nearby harbor. The court overruled the ZBA's finding that because houses in the area were grouped close together, granting of a variance would result in an undesirable change to the neighborhood. As the patio would face the water and not the neighborhood, the court reasoned that it would "have no genuinely detrimental impact upon neighboring parcels, several others of which have received variances for other recreational improvements."²⁹⁵ Likewise, in Sautner v. Amster,²⁹⁶ the Appellate Division, Second Department annulled the denial on an area variance for a landowner who sought to subdivide his property into two lots that would be below the required minimum lot size. The court held that the variance would not create an undesirable change in the character of the community because there were a large number of lots in the surrounding neighborhood that were similar in size to the proposed lots, and the corner of the property that was currently being used as a dumping ground would be eliminated by the building of a house on the proposed new lot.

Documentation of neighborhood conditions is particularly important where this factor will serve as a basis for denying a variance request that, in the course of review, is established by the applicant to be consistent with existing build conditions.²⁹⁷

Although the ZBA may consider a wide array of criteria in weighing this initial factor, due process requires that facts outside the record or received after the close of the public hearing be fully and fairly disclosed to the applicant. Since applicants have the burden of proving that a variance is warranted, they must be given the opportunity to rebut proof submitted in opposition to their applications.²⁹⁸

2. Alternatives to Variance

The second factor the ZBA must consider in determining whether to grant an area variance is whether the ZBA can achieve the benefit sought by the applicant by an alternative method that is feasible for the applicant and does not require a variance.²⁹⁹

The Court of Appeals illustrated the application of this factor in Sasso v. Osgood,³⁰⁰ where it upheld an area variance to expand a single-slip boathouse to a three-slip boathouse. The court noted that "no alternatives other than the grant of area variances existed, because [the applicant's] lot is of substandard size, and no improvement to the property could be made without the requested lot size and width variances."³⁰¹ Similarly, in Baker v. Brownlie,³⁰² the Appellate Division, Second Department noted that since the applicant's "desired benefit is to have a patio facing the water, the [ZBA's] finding that it could be located elsewhere on the [applicant's] property is clearly erroneous."³⁰³

Proof of feasible alternatives (or lack thereof) to granting a variance is a fact-intensive inquiry. For example, an applicant may establish that the project could not be redesigned in a manner that does not
require a variance.³⁰⁴ Or an applicant may prove that a variance is necessary because of an inability to acquire additional land from an abutting neighbor.³⁰⁵ Generally speaking, the ZBA may not base a denial of area variance upon the failure of the applicant to make a bona fide offer to sell his property to abutting owners,³⁰⁶ even where a purchase offer from an adjacent landowner exists.³⁰⁷ However, the Appellate Division, Second Department has also held that where the applicant is a seasoned purchaser of real estate, refusal to sell the substandard property to adjoining neighbors, as an alternative to the granting of a variance, is a proper topic of consideration in a decision to deny an application for an area variance.³⁰⁸

3. Physical/Environmental Conditions

Closely related to the "community character" inquiry is the requirement that the variant use be examined for potential adverse effects or impacts on the physical or environmental conditions in the neighborhood or district.³⁰⁹ As with any of the balancing criteria, adverse effects on physical or environmental conditions must be supported by substantial evidence in the written record.

In Frank v. Scheyer,³¹⁰ the Appellate Division, Second Department reversed the denial of two area variances to construct a single-family home in an area designated by state and local officials as a wetlands district. It held that the concerns of community residents and ZBA members that the proposed development would affect flooding, property values and the aesthetic character of the community were based upon "pure conjecture and speculation."³¹¹ The court stated:

No evidence was offered that the construction would cause environmental problems. Quite the contrary, the [applicant] presented the [wetlands district] building permit prepared by NYSDEC, which authorized the construction under strict guidelines. The Zoning Board's finding "from a purely zoning point of view that [the conditions imposed by NYSDEC...