- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Matter of Gez v. Town of Greenburgh Zoning Board of Appeals
- Docket
- 2024-00505
- Filed
- May 27, 2026
- Slip Op
- 2026 NY Slip Op 03305
- Citation
- 2026 NY Slip Op 03305 (N.Y. App. Div. 2d Dep’t 2026)
Background
Orly Gez applied to the Zoning Board of Appeals (ZBA) of the Town of Greenburgh for permission to build a single-family residence or, in the alternative, for two area variances. The ZBA held a public hearing and denied the application. Gez then commenced a CPLR article 78 proceeding to challenge the ZBA’s determination. The Supreme Court, Westchester County denied the petition and dismissed the proceeding. Gez appealed.
Holding
The Appellate Division, Second Department affirmed the judgment, with costs. The court applied the well-established standard of review for zoning board determinations, noting that local zoning boards “have broad discretion in considering variance applications, and judicial review is limited to determining whether the action taken by the board was affected by an error of law, arbitrary and capricious, or an abuse of discretion,” citing Matter of Bonadonna v. Board of Zoning Appeals of the Inc. Vil. of Upper Brookville, 220 AD3d 855.
The court reviewed the ZBA’s application of the five-factor balancing test required by Town Law § 267-b(3)(b) for area variances, which requires consideration of: (1) whether the variance would produce an undesirable change in the neighborhood character or detriment to nearby properties; (2) whether the benefit sought can be achieved by an alternative method feasible for the applicant; (3) whether the requested variance is substantial; (4) whether the variance would adversely affect physical or environmental conditions; and (5) whether the difficulty is self-created.
The court found that the ZBA’s determination was rational and supported by the record. Notably, the court reiterated that the zoning board “is not required to justify its determination with supporting evidence for each of the five statutory factors as long as its determination balancing the relevant considerations is rational.” The court declined to reweigh the evidence or second-guess the ZBA’s exercise of discretion.
Takeaways
This decision reinforces the broad deference accorded to local zoning boards in New York when deciding area variance applications. The five-factor test under Town Law § 267-b(3)(b) is a balancing test, not a checklist — the board need not make specific findings on each factor so long as the overall determination is rational. This standard makes it difficult for applicants to overturn variance denials on appeal, as courts will not substitute their judgment for that of the board.
The self-created hardship factor, while not necessarily preclusive, is “relevant to the decision.” Applicants who purchase property with knowledge of zoning restrictions and then seek variances to build beyond those restrictions may face an uphill battle, as the ZBA can weigh the self-created nature of the difficulty against the other factors.
Practitioners representing variance applicants should build the strongest possible record before the ZBA, including expert testimony on neighborhood impact, alternative designs that were considered, and evidence that the variance is not substantial relative to the zoning requirements. Once the ZBA renders its decision, judicial review is narrow and deferential.
Why It Matters
For property owners and developers in New York, this case highlights the challenges of obtaining area variances and the limited avenues for judicial relief when a ZBA denies an application. Zoning boards exercise substantial discretion in balancing competing interests, and courts will uphold their determinations as long as a rational basis exists. Property purchasers should carefully evaluate zoning restrictions before acquiring property, as courts will take note of whether zoning difficulties were self-imposed when reviewing variance denials.