Court Upholds Decision of Town’s Board of Zoning Appeals and Dismisses Article 78 Petition

Following a hearing, the Board of Zoning Appeals of the Town of Hempstead (“Board of Appeals” or “BZA”) denied an application for two (2) variances with respect to a pre-existing detached two (2) car garage.  Petitioners commenced an Article 78 proceeding in the Supreme Court, Nassau County alleging that the BZA abused its discretion in determining that the benefit to Petitioners was outweighed by the detrimental effect the granting of the variances would have on the character of the surrounding neighborhood.

In opposition to the Petition, Berkman Henoch argued that the BZA’s decision was neither arbitrary, capricious, irrational nor an abuse of discretion because the BZA, among other things, considered the factors set forth in Section 267-b(3) of the Town Law and weighed Petitioners’ interest against that of the surrounding area.

Following an oral argument by the parties, the Court (Carlton, J.S.C.) ruled in favor of the BZA and dismissed the Article 78 Petition.  The Court observed that the BZA, upon its review of the variance application, determined that the Petitioners’ garage was “oversized, not in the right location, had the appearance of a commercial garage, was the only one in the neighborhood, was out of character with the neighborhood and would create a bad precedent.  Further the Board found that the hardship was self-created . . . Further, at the hearing [before the BZA], Petitioners failed to offer and/or present to the [BZA] any evidence that it had previously granted variances permitting the erection of nonconforming garages.”  As such, the Court affirmed the determination of the BZA and dismissed the Petitioners’ Article 78 petition.

Board of Zoning Appeals of the Town of Hempstead was represented by Joseph E. Macy, Esq. and Nicholas S. Tuffarelli, Esq. – members of Berkman Henoch’s Litigation Department.

Link to:  Copy of the Court’s Decision and Order dismissing the Article 78 Petition