Building character: Zoning board presentations and how they can affect results

Even a seemingly straight forward area variance application can be a challenge to present before the zoning board of appeals. Zoning board decisions set a precedent. If the board approves an application for area variance relief in one instance, unless the facts are substantially dissimilar, the board is bound to approve a later application seeking the same relief. With such a result, one approval has the potential to down-zone an entire neighborhood, and change its character. The legal criteria that the zoning board is to consider is laid out in Town Law §267-b(3), which also states that the board 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. Town Law §267-b(3) further provides five criteria for the board to consider in making a determination on an area variance. They need to consider: whether granting the application would produce an undesirable change in the character of the neighborhood or create a detriment to the nearby properties; whether the benefit sought by the applicant could be achieved by some other method feasible for the applicant to pursue; whether the requested variance is substantial; whether the proposed variance would have an adverse impact on the physical or environmental conditions in the neighborhood; and whether the alleged difficulty was self-created. What exactly does this all mean? The review of the evidence presented to the board is often subjective, and it comes down to whether the proposal fits the character of the area. One way to address this issue is by providing the testimony of an expert, such as a real estate broker or an appraiser. Expert testimony is not required in all area variance cases, and for some applicants hiring an expert might be cost prohibitive. A cost-effective way to show the character of the neighborhood is through pictures. Provide the zoning board with photos of the area, including any similar development. For instance, distinctive architectural style of the houses in the area, and spacing between existing residences are factors that zoning boards have relied upon in making a determination, which has been backed up by the courts. Many zoning boards will determine the magnitude of the variance as a percentage in deciding whether a variance is "substantial." Courts in New York have upheld a wide range of percentages of relief that have been determined "substantial" by the zoning board - anywhere from 60% to 27%. If you find that the numbers are not in your favor, the argument could be made that, while the percentage of deficiency may be substantial, the variance request is not substantial in comparison to the existing development. In other words, that the proposal is still in character with the area. Whether the proposal would have an adverse impact on the area is not always obvious, unless there are clear environmental or traffic issues, for example. Once again this presents a subjective and general analysis as to whether the proposal is in character with the existing development in the area. Considering whether the applicant has another method to pursue other than an area variance, the answer is often "yes." For example, the proposed structure could be reduced in size or relocated to comply with setback requirements. This analysis may also be tied into whether the applicant's hardship is self-created. However, in a case where the applicant is seeking variance relief for conditions maintained by the majority of properties, and is in keeping with the existing character of the area, these factors should not be weighed heavily against the applicant. Since zoning board's decision sets a precedent for future variances proposals, careful consideration of the existing character of an area, and its future development is imperative. Leigh Rate is an associate in the real estate and land use practice groups at Certilman Balin, Hauppauge, N.Y.