When requesting deviation from setback minimums or minimum lot size requirements, a developer must request an area variance. Even if the lots are zoned residential and the developer only wants to build a single-family residence, there is no guarantee that a Zoning Board of Appeals will allow deviations and grant an area variance, as in Matter of Stelling v. Gaudioso, 2022 NY Slip Op 02409, 2022 WL 1097243 (2d Dep’t 2022).

In Stelling, the petitioner wanted to subdivide the property into two separate lots. The first step in this process is to complete a minor subdivision application, which was submitted to the Village of Lake Grove Planning Board. However, the subject property requires a minimum lot size of 20,000 square feet, but the petitioner sought one lot to be only 6,000 square feet and the other to be 10,000 square feet. Therefore, the petitioner had to apply to the Lake Grove Zoning Board of Appeals (“ZBA”) for area variances. The ZBA denied the petitioner’s applications, and the petitioner commenced an article 78 proceeding to set aside the ZBA’s determination, which the Suffolk County Supreme Court in turn denied.

In affirming the Suffolk County Supreme Court’s decision, the Appellate Division, Second Department, held that the ZBA’s decision was rational. The court explained that when deciding whether to grant an area variance, “a zoning board of appeals is required to engage in a balancing test weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community” Stelling p. 3, citing Matter of deBordenave v. Village of Tuxedo Park Bd. of Zoning Appeals, 92 N.Y.S.3d 132 (2d Dep’t 2019). In considering the benefits and drawbacks of an area variance, the code of the Village of Lake Grove specifies factors to consider:

(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, feasible for the applicant to pursue, 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 or district; and (5) whether the alleged difficulty was self-created” (Village Law § 7-712-b[3][b]).

Though these factors must be considered by a local zoning board, courts will not disturb a determination unless an “action taken by the board was illegal, arbitrary, or an abuse of discretion” because zoning boards have wide discretion in deciding variance applications. Stelling, p. 3-4 (internal citations omitted). Further, a determination only must have some “objective factual basis” to be considered rational and not arbitrary and capricious. Stelling, p. 4.

In Stelling, the court held that the relevant factors were considered by the ZBA, and so the ZBA’s decision to deny the petitioner’s applications was rational and not arbitrary or capricious. The petitioner’s variances were substantial—specifically, the lot areas would have been 50% and 70% smaller than the zoning requirements. Further, the court found that there were feasible alternatives for the petitioner because one house could be constructed on the property instead of two.

The factors in balancing the interests of the community and applicant do not specifically put a limit on the size of an area variance that could be granted; the benefits and drawbacks to the community as a whole will be considered, as well as the feasibility of alternatives along with all of the aforementioned factors. However, it is helpful for developers to consider that the Stelling court considered lots 50% and 70% smaller than was allowed in the zoning code to be substantial.