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NY Appellate Court Affirms Decision to Grant Area Variances Due To Lack Of Standing and The ZBA’s Proper Consideration of Facts and Alternatives

This post was authored by Tyler Doan, Esq.

Petitioner owns property on one side of a road. Respondent owns roughly 6.8 acres across the road from Petitioner that contains a two-story 97 room hotel. Both properties are located within a Highway Commercial zoning district which exists β€œto encourage a full range of commercial activity along major highways.” The two properties are surrounded by other commercial properties.

In 2015 Respondent applied to the ZBA for an area variance to construct two new hotels on its property. In a determination dated January 28, 2016, the ZBA granted the variances. In a CPLR article 78 proceeding, the Supreme Court annulled the ZBA’s determination and remitted the matter to the ZBA for review pursuant to the State Environmental Quality Review Act. Respondent there after completing the environmental impact statement and the SEQURA process, ultimately obtaining a statement of findings from the Town Planning board in October of 2019 approving the proposed project. Respondent then reapplied to the ZBA for area variances for the two hotels. Hotel A is a five story 102 room hotel located 250 feet from the Petitioner’s property line, Respondent sought an area variance for its maximum building height. Hotel B is a four story 88 room hotel located approximately 1050 feet from the Petitioner’s property line; Respondents sought three variances for Hotel B: a variance for maximum building height, for minimum side-yard setback, and for minimum total side-yard setback requirements. On November 25, 2019, the ZBA held a public hearing on the application during which Petitioner spoke in opposition. After the hearing in a determination dated December 9, 2019, the ZBA granted Respondent’s application for the area variances. Petitioner commenced the article 78 proceeding to review the ZBA’s determination. The Supreme Court denied the petition and dismissed the proceedings. Petitioner appealed.

In affirming the Supreme Court’s decision, the Appellate Division reasoned petitioner lacked standing to contest the variances for Hotel B due to its location approximately 1050 feet from the Petitioner’s property line, thus being too far to allow a presumption of an injury-in-fact. Further, the Court reasoned that the ZBA’s determination regarding the Hotel A variance was not arbitrary and capricious due to the ZBA engaging in the required balancing test and considering relevant statutory factors in granting the Hotel A variance. Additionally, the Court reasoned that the evidence before the ZBA supported its conclusion that the variance would not produce an undesirable change in the character of the neighborhood due to its location in a highly commercial zoning district, as well as the ZBA considering at least three alternatives and determining the proposed project minimized community and commercial effects with the least variance possible.

Nunnally v Zoning Board of Appeals of the Town of Windsor, 2023 WL 4219046 (NYAD 2 Dept. 6/28/2023)