Tuesday, December 14, 2010

Area Variances in New York

From time to time, it is worthwhile to examine the various functions of municipal zoning boards in other states around the country. One state which appears to be diametrically opposed to the standards used here in Tennessee, is the state of New York. The requirements for an area variance (as opposed to a use variance, which are also permitted in New York) are as follows:

In making its determination, the zoning board of appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties 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 variance is substantial; (4) whether the proposed variance is 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.
The New York courts look at this provision as requiring a balancing of the factors by the board of zoning appeals. Notice that the words practical difficulty or undue hardship did not make an appearance in the language of the statute. Under current New York law, the zoning Board simply balances the benefits of the property owner versus the detriment to be neighboring properties. Furthermore, so long as the decision appears not to be arbitrary and capricious, and so long as the zoning board has apparently reviewed each of the factors set out in the statute, the courts are unlikely to overturn a decision of the administrative body.

In two recent cases, the New York Appellate Division upheld denials of area variances by local zoning boards. In Townsend v Zoning Board of Appeals of City of Rye, 2010 WL 4540311 (N.Y.A.D. 2 Dept. 11/9/2010) and Korzenko v Scheyer, 2010 WL 4366987 (N.Y.A.D. 2 Dept. 11/3/2010), the courts found that the zoning boards had not acted arbitrarily or capriciously, and that they had engaged in the required balancing set forth in the statute. There was a rational basis for the decision and as a result, the courts affirmed the denials of the area variances.

Of course, under Tennessee law, the applicant must demonstrate some exceptional physical feature of the property which justifies the relaxation of the zoning restrictions with regard to his property. In the absence of some exceptional physical feature, a mere balancing of the equities between the applicant and the surrounding property owners is decidedly insufficient. Ultimately, this is the heart of the argument between Alfred Bettman and Ed Bassett (of New York City) in the early stages of zoning law in the 20th century. Bassett always argued that relatively vague and general standards were most appropriate while Bettman argued that some specificity was necessary in order to focus the administrative board's on the right task. Leaving the issues of whether a variance should be granted entirely to the board's discretion amounted, in Bettman's view, to nothing more than legislative decision-making allowing one property owner to use his or her property in a way which the surrounding property owners could not.

The differences between these two approaches continues even today.

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