Overturned Variance

This week we wanted to bring your attention to an Appellate Division, 2^nd Department, case which ultimately rejected a petitioner’s claim for a variance to locate his inground swimming pool wholly on his property but in violation of the Town of Islip’s Zoning Code set back requirements. The lower Court had initially granted the Petitioner’s application for a variance, but the Appellate Court overturned the lower court decision based on its review of the Town’s Zoning Board of Appeals (“ZBA”) analysis of the facts included in the variance application. A summary of those relevant facts, along with a link to the case, are set forth below.

A pool constructed six feet from the property line was required by the Town of Islip Zoning Code to be set back not less than fourteen feet. The Town’s Zoning Board of Appeals (“ZBA”) denied the Petitioner’s request for a variance; the Supreme Court, Suffolk County, granted the petition and directed issuance of the variance. The Appellate Division, Second Department, reversed the lower court’s ruling, denied the petition and dismissed the proceeding. The Appellate Division held that the Petitioner had not established that a variance was warranted under Town Law Section 267-b (“Permitted action by board of appeals”) under which a use variance may be granted only on “a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship.”
The Appellate Division further found that the ZBA had considered, as required by Section 267-b, “‘(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…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…; and (5) whether the alleged difficulty was self-created’[citation omitted].”
In addition, the Appellate Division found that
“[t]aking into account the rationale for the required setback, which was to protect the privacy and quiet enjoyment of adjacent residential properties, as well as the fact that the location of the pool was inconsistent with the nature and character of the surrounding area, and that the approval of the requested variance would establish an unwarranted precedent for future development of the area, the ZBA determined that granting the requested variance would have an adverse effect on the physical or environmental conditions in the neighborhood.”

Matter of Dutt v. Bowers, 2022 NY Slip Op 04546, decided July 13, 2022, is posted at
https://www.nycourts.gov/reporter/3dseries/2022/2022_04546.htm

This case highlights the importance not only for you to carefully review your client’s local municipality zoning requirements before advising on any proposed construction, but also to evaluate the conditions under which the local ZBA might grant a variance if the need arises.