Court Upholds Renewal and Extension of 20 Year Old Area Variance Approval

Land Use

Often, applicants are granted approvals for variances that are required in connection with a building project that never moves forward.  In such a situation, pursuant to the terms of the municipal code at issue, the approval will generally expire and the applicant will be required to file an application for a renewal of the variance if they wish to proceed with the project at a later date.  In Cohen v. Village of Irvington,2010 WL 4967899 (Sup. Ct. Westchester, Nov. 30, 2010), the Court was asked to decide whether the Board of Zoning Appeals of the Village of Irvington (“BZA”) could lawfully renew an area variance approval that expired over twenty years ago.  

In Cohen, the Court found that the BZA correctly renewed and extended the area variance at issue, as there had been no change in any material condition surrounding the original variance application and approval.

The Cohen proceeding was commenced by neighboring lot owners pursuant to CPLR Article 78 to reverse and annul the BZA’s decision to grant the applicant, Respondent, Renato Rancic (“Rancic”), a one-year extension of the area variance for lot frontage that was first issued in 1986 to Rancic’s predecessor-in-title.  The original variance approval  expired in 1987 pursuant to the Village Code, since Rancic’s predecessor did not commence construction within one year of the granting of the variance. 

The record in these proceedings showed that the Rancic premises were once part of a common larger parcel that was subdivided into four lots in 1986.  The Rancic premises are only accessible by way of an express easement (created when the lots were subdivided) known as the “Bridge Street Easement”.

In reaching its decision to extend the frontage variance, the BZA determined that the question of whether the variance may be extended turned on whether the Bridge Street Easement was valid. Based on prior litigation involving a property adjacent to the Rancic premises, the Board determined that the Bridge Street Easement was in fact valid. The Court confirmed that the BZA was correct in finding that the Bridge Street Easement was valid.  Specifically, the Court stated:

“The Zoning Board thus correctly reasoned that the decision of whether to extend the frontage variance turned first upon the question of whether the Bridge Street Easement is valid and existing. As the Zoning Board recognized, the Second Department previously decided, in the context of an adjoining landowner who sought to take the advantage of it, that the Bridge Street Easement was valid and ran with the land. In Mackie v. Martucci, 39 A.D.3d 820, 821 (2d Dept. 2007), defendant Martucci owned one of four parcels originally conveyed by the common owner, Bernard Kayden. Martucci was granted summary judgment on his counterclaim declaring that he had an express easement, granted by Kayden to Martucci’s predecessor in interest, along the same private way at issue here. In its decision, the Second Department referred to all four parcels conveyed by Kayden — including the parcel now owned by Rancic — and stated that an easement ‘for the benefit of any house that was or might be built on those parcels of land‘ remained for Kayden and subsequent owners of the parcels to enjoy.”

The Court next analyzed whether the BZA was correct in extending the variance.  In analyzing this issue, the Court relied upon the Third Department’s decision in American Red Cross v. Board of Zoning Appeals of the City of Ithaca, 161 A.D.2d 878, 879 (3rd Dept. 1990).  In Red Cross, the Court reasoned that unless there has been a material change in circumstances surrounding the property between the time the initial variance was issued and the present, a re-issuance should be granted.  Specifically, the Court stated:

“‘ Although respondent [Zoning Board] may deny a reapplication for a variance upon the expiration of a time limitation imposed thereon…. such denial must be premised on a change in the relevant conditions surrounding the application…. Absent such material charges, respondent is bound to its earlier decision…. and may not refuse a variance previously granted on a prior finding of practical difficulty.‘ (Citations omitted).”

In arguing that there had been such material changes in the Rancic application, the Petitioners argued that the Mackies(current owners of one of the four parcels originally subdivided) built a home on their property since the time of the original application.  Further, that the parcels have all been up-zoned to the IF-60 District, which now required 1.5 acre building lots instead of 1 acre building lots. 

However, the Court found that the changes that Petitioners noted were not material nor relevant to the Rancicvariance application.  Specifically, the residence that was constructed on the Mackie premises had no affect on the Rancic premises and played no role in the decision of whether to extend the veriance.  Second, the up-zoning to of the Rancic premises to the IF-60 district is not relevant because each parcel of land on the original Kaydenproperty, including the Rancic Premises are larger than two acres and therefore the up zoning had no substantial effect on the land or renewal of the variance.

Accordingly, the Court upheld the BZA’s decision to extend the Rancic variance application and dismissed the Petition.

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