Agenda - Planning Commission - 06/03/2004

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Page 8 --April 25, 2004 Variance -- Board denies' variance because of lack of hardship Developer argues board used wrong legal standard Citation: Stone Landing Corporation v. Board of Appeals of the Village of Amiryville, Supreme Court of New York, Apt). Div., 2nd Dept., No. 2003-02022 (2004) NEW YORK (03/08/04) -- Stone Landing Corporation applied for several area variances and a special exception permit in connection with the subdivi- sion of one parcel into two smaller lots, including the building of a s/ngle- fam/ly home on one and the maintenance of an existing two-family home on the other. The board of appeals of the village of Amityville denied the application. It found there was no showing of tinancial hardship or practical difficulty for either the appticant or the current owner. Stone Landing sued, and the court ruled in favor of the board. Stone Landing appealed, arguing the board used an incorrect legal stan- dard in denying the variance. DECISION: Reversed. The board used the incorrect legal standard. Consequently, its determina- tion was irrational and an abuse of discretion. tn making variance decisions, the village zoning code required the board to consider whether there would be an undesirable change in the neighbor- hood, whether the benefit sought by the applicant could be achieved in some other way, whether the variance was substantial, whether the proposed vari- ance would have an adverse impact on the neighborhood, and whether the alleged di~lculty was seht' created. V'Lllage law preempted any inconsistent local zoning ordinance, including those that would permit or require a zoning board to consider whether an ap- plicant for a variance had shown it would suffer practical difficulties or finan- cial hardship if the variance was denied. Additional/y, under state law, an applicant for a spec/al exception only had to show his or her application met objective criteria articulated in the zoning 'ordinance, not that there were financial hardship or practical difficulties. Because there was no requirement of financial hardship or practical diffi- culty under the code, the application could not be denied for the reasons stated by the board. see a&o: Ceballos v. Zoning Board of Appeals of Town of Mount Pleasant, 304 A.D.2d 575. see also: Cohen v. Board of At,peals of Village of Saddle Rock, 795 N.E. 2d 619. © 2004 Quinlan Put~lishing Group. Any reproduction is prohibited, For more information please call (617) 542-0048. 114