Effective Weapon or Blunt Tool: Administrative Precedent in the Land Use Approval Process

Effective Weapon or Blunt Tool: Administrative Precedent in the Land Use Approval Process

4.15.2025

By Adam L. Wekstein

If you are a land use practitioner, you have likely been approached by a prospective client who insists that he or she has an absolute right to obtain a zoning variance because the facts of their application resemble those on which prior variances were granted for other properties in a different zoning district on the other side of town a number of years earlier. The prospective client indignantly espouses the legal theory that a denial would equate to impermissible discrimination. Also likely is that you have been asked to pursue an application for approval where a board has denied one or more similar applications on properties near to your potential client’s lot or even one relating to that individual’s parcel itself. Is the former client’s impenetrable self-righteousness justified and the latter’s possibly naive hopes doomed? The definitive answer to both inquiries is “it depends.”[1]

If quoted to the former prospective client, an important principle applicable to variances and certain other land use approvals will result in frustration (and perhaps shopping for another attorney). Specifically, established law is that “the mere fact that one property owner is denied a variance while others similarly situated are granted variances does not, in itself, suffice to establish that the difference in result is due either to impermissible discrimination or to arbitrary action.”[2]

The latter client can take at least some solace in the fact that if the board acts favorably on his or her application, the board’s prior inconsistent determinations do not necessarily mandate invalidation of the variance or approval. Rather, evaluation of the precedential force of prior decisions is inherently fact-specific and presents questions that need to be considered on a case-by-case basis, with the ultimate outcome being dependent to a significant degree on how artfully the board frames the rationale for its determination.

Basic Rule of Administrative Precedent

The short version of the rule regarding administrative precedent, characterized by the Court of Appeals as a species of stare decisis in the oft-cited case of Matter of Charles A. Field Delivery, Inc, is “absent an explanation by the agency, an administrative agency decision which, on essentially the same facts as underlaid a prior agency determination, reaches a conclusion contrary to the prior determination is arbitrary and capricious.”[3] In order to deviate from its prior decision, an agency’s explanation for doing so must be included in its resolution and cannot be raised for the first time in litigation[4] or supplied after-the-fact by a court.[5] In discussing the basis for this requirement, New York’s highest court explained the parallels between administrative and judicial proceedings in the following passage:

The policy reasons for consistent results, given essentially similar facts, are . . . largely the same whether the proceeding be administrative or judicial – to provide guidance for those governed by the determination made . . . to deal impartially with litigants; promote stability in the law; allow for efficient use of the adjudicatory process; and to maintain the appearance of justice. . . . The underlying precept is that in administrative, as in judicial, proceedings “justice demands that cases with like antecedents should breed like consequences . . . ”[6]

The court emphasized that in light of such policy considerations, if an agency chooses to “alter its prior stated course,” it must state its reasons for doing so, and without such an explanation “a reviewing court will be unable to determine whether the agency has changed its prior interpretation of the law for valid reasons, or has simply overlooked or ignored its prior decision.”[7] It follows that absent an express explanation, “a failure to conform to agency precedent require(s) reversal on the law,” even where there is substantial evidence to support the agency’s determination.[8]

The Role of Precedent in the Land Use Approval Process

The generally applicable rules governing the role of administrative precedent apply to land use decisions.^[9] Specifically, the standard for determining whether a land use board has given the mandated regard for its own prior determination is, once again, that a decision “which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious,” and thus, “[w]here an agency reaches contrary results on substantially similar facts, it must provide an explanation.”[10] These two simple phrases give rise to a number of issues. Further, the rule applies both with respect to the precedential value of decisions concerning other properties^[11] and earlier determinations as to a property that is the subject of a pending application^[12] – albeit, potentially to a different degree. A board’s failure to adhere to the rule triggers invalidation of its determination, even where there is otherwise evidence in the record sufficient to support its decision.^[13] Review of case law shows that annulment based on a board’s failure to explain why its earlier precedent is distinguishable or, alternatively, to specify grounds for its choice to chart an arguably different course is not unusual.[14]

Much to the disappointment of the hypothetical indignant client mentioned at the outset of this article, the law is that, without more, the fact that another property owner in a parallel situation has succeeded, while the applicant has been denied approval, is an insufficient basis for invalidating the denial.^[15]

In the land use context (and, for that matter, outside of it), case law provides that the imperative to treat prior administrative determinations as precedent is confined to “quasi-judicial,”[16] rather than other administrative, determinations. It is a limitation that is neither necessarily straightforward nor rigid. The vast majority of cases that invoke or analyze the role of administrative precedent in the land use approval process relate to the decisions of zoning boards of appeals. The decisions of such boards are referred to as quasi-judicial.[17] Nonetheless, the principle has been applied beyond such limited confines to other land use boards or permitting authorities, including planning boards,[18] which would commonly not be understood to be quasi-judicial. It has been invoked in reviewing determinations involving interpretations of zoning provisions,[19] area variances,[20] use variances,[21] special use permits,[22] wetlands permits[23] and sign permits.[24] In contrast, precedent plays no role with respect to legislative determinations, such as a city council’s decision to enact a rezoning where it had previously denied the same zoning amendment.[25]

Earlier Decisions Serve as Compelling Precedent When the Facts of an Application Are ‘Essentially the Same as’ or ‘Substantially Similar to’ Those on Which the Prior Determination Was Based

The party seeking to invoke a board’s prior decision(s) as precedent sufficient to require that board to adhere to it or explain the departure therefrom has the burden to show that the facts of the application being considered are substantially similar to those that were the subject of such prior determination(s).[26] Conversely, a failure to meet that burden effectively leaves a board free to act without regard to the outcome of prior applications.[27] In such circumstances, the board need not even express a basis for its departure.[28]

To establish a prior determination was decided on essentially the same facts, a party should introduce the earlier written decisions and evidence about them into the administrative record.[29] Where the same applicant who obtained the prior decision is also the current one, he or she must show why a board should entertain a different outcome.[30] In turn, a zoning board also cannot rely on prior decisions to invoke the doctrine of stare decisis or res judicata, unless it specifies the basis for doing so.[31] Evidence of, and citation to, salient earlier decisions cannot be introduced for the first time in court by any party.[32]

What is “essentially the same” seems to a large degree to be within the eye of the beholder; usually the beholder is the land use board. The determination is a highly fact-dependent one that normally falls within the reasonable discretion of the board, which is said to have authority “to give weight to slight differences which are not easily discernable.”[33] Sometimes the answer to what constitutes “essentially the same” or “substantially similar” may be fairly obvious, possibly when it involves a recent prior decision relating to the same property. In closer cases, the practitioner will often be hard-pressed to discern useful guidance from legal precedent – a conclusion which, if explained to the self-righteous client, could not help but have an incendiary effect.

What Constitutes a Sufficient Explanation for Deviating From a Prior Determination

The board possesses significant leeway to deviate from an earlier determination on even virtually identical facts if it provides the requisite explanation for so doing. Multiple different issues may serve as a legally cognizable explanation for its action. Again, even minor factual distinctions may be a basis for a zoning board to depart from a prior decision, provided the board expresses a rational explanation of its reasons for doing so.^[34] This does not mean, however, that a board’s rationale is immune from judicial invalidation if it fails to surpass the low bar of rationality. For example, in one matter, a zoning board approved a canopy for one service station while denying it to another, at least, in part, grounded on the fact that the former station was self-service and the latter had several (but not all) full-service pumps.[35] The court held that the distinction was irrational, finding that a canopy is intended to protect customers from inclement weather regardless of the specifics of pump operations and annulled the variance denial.[36]

In contrast, in Waidler v. Young,^[37] the Second Department employed perhaps the most extreme application of the principle, which is that even where the facts are indistinguishable, a board has freedom to depart from a prior determination; the board merely has to advance an explanation for so doing that is reasonable,[38] and, indeed, it “may refuse to duplicate previous error [or] may change its views as to what is for the best interests of the [Town] . . . It need only have a rational basis for doing so.”^[39]

A Sampling of Factors Relevant in Applying Precedent to Zoning Board Practice

Unfortunately, a majority of the reported cases that consider the stare decisis effect of prior land use decisions include scant descriptions of the operative facts. Some of the factors that can be relevant are discussed in the numbered paragraphs below.

1. Comparative Magnitude of the Variances

Perhaps by including this paragraph, the author is demonstrating that he has a firm grasp of the obvious. The size of the variance(s) being sought in comparison to the magnitude of those that are claimed to be precedent is significant in determining whether the circumstances are substantially similar or, alternatively, whether the differences are sufficient to serve as a reasonable explanation for a decision to deviate from the earlier dispositions.[40]

2. Distance Between Properties and Location in the Same Neighborhood

The Appellate Division has repeatedly rejected the precedential force of board decisions concerning properties that are not in the same neighborhood as, or not near to, the property that is the subject of the decision under review.^[41] In contrast to, but consistent with, such authority, L & M Graziose, LLP v. City of Glen Cove Zoning Bd. of Appeals^[42] reversed the denial of variances based on its conclusion that “similar variance requests were granted for properties in very close proximity to the subject property, and the ZBA’s past pronouncements confirm that the character of the neighborhood would not be negatively affected by the granting of the variances.”^[43] It did so notwithstanding that the court acknowledged both the broad deference accorded to zoning boards and that the variances were substantial.

3. Applicable Zoning District

Another factor that courts have accepted as a legitimate basis for distinguishing earlier determinations of a board is that the purportedly precedential decisions were made with respect to properties located in a different zoning district than the site for which approval is being sought.[44] This follows, because presumably a variance for a parcel in a different district may have different implications or impacts in the context of a distinct set of permitted uses and dimensional requirements. The two districts may have been designed to accommodate and mitigate different potential impacts or foster types of land use with which certain varied externalities would inevitably be associated. On the other hand, as should be evident from the discussion so far, as with the other factors, the import of even a board’s pattern of favorable treatment of multiple applications in the same zoning district as a subject property can be dismissed with an explanation that such decisions were prior mistaken interpretations that warrant correction.[45]

4. Change in Conditions, Neighborhood Character or Passage of Time

The Second Department has recognized that a change in conditions following an earlier administrative decision is a basis for a board to deviate therefrom. For example, the court held that a variance granted nine years earlier to allow a subdivision featuring “flag lots” that were similar to those for which variances were being sought was insufficient to require invalidation of a denial of the latter because the applicant failed to show that the outcome of his application was on essentially the same facts.^[46]

Last year, that court upheld the grant of an area variance to allow addition of an accessory apartment in a two-family dwelling in direct contravention of a condition imposed in the earlier 2016-vintage variance that authorized the original two-family use. While recognizing the import of precedent, the Appellate Division held that the zoning board properly relied, among other things, on the reasoning “that the Town’s housing needs had grown since 2016 due to population growth and that granting the application was one way to ‘accommodat[e]’ those needs.”[47]

One of the most important changes that can justify divergent outcomes is the evolution of the character of the neighborhood in which the salient property or properties are located. In one case, a board’s explanation that its history of granting successive variances to other parties had changed the character of the neighborhood was held to be a rational one justifying denial of an application for similar relief.[48] A board was also found to have provided a rational explanation for disparate treatment of an application in contrast to earlier dispositions, where it stated that in subsequent years the town had “come to realize that the proliferation of nonconforming lots is ‘disruptive of the goals of sound planning and land use, injurious to the health safety and welfare of the community and against public policy.’”[49] In Cowan, the Court of Appeals confirmed a variance denial, notwithstanding the relatively recent grant of two others to adjoining landowners based on the board’s stated perception that recent development had negatively impacted the community. In pertinent part, the decision explained its reasoning as follows:

[T]he zoning board was certainly free to conclude that, after three years from the last residential construction, the area had become too congested to permit further substandard development . . . That the board had granted two variances in the past did not strap it to grant variances to all comers in the future automatically and without due regard for changed conditions that might require a different result. Having granted two variances in the past, the board could properly decide that additional variances would impose too great a burden and strain on the existing community.[50]

Conversely, so long as it is rational, a board’s adherence to earlier decisions based on its finding that there had been no salient change in circumstances that would justify a different result will not be disturbed.[51] However, where there had been substantial changes in circumstances following a prior denial, a board’s refusal even to consider a new application for similar relief can be arbitrary and capricious.[52]

The mere passage of time after a board’s earlier decision is an insufficient basis, in and of itself, to justify a result that deviates from that precedent. For example, Lucas v. Bd. of Appeals of Village of Mamaroneck annulled a variance, finding that the zoning board’s reasons for distinguishing a 15-year-old denial did not reflect that there had been “a material change in circumstances sufficient to justify the different result.”^[53] In fact, even after a variance has expired, a zoning board is not free to deny a renewal absent changed circumstances.[54] One case applied this principle to a board’s refusal to renew a 24-year-old frontage variance.[55] Nevertheless, that a prior decision is chronologically very close to an application for a similar variance is likely to be a factor that a board can properly consider in determining the precedential respect it should be accorded.[56]

5. Different Plans

An application concerning the same parcel for which an adverse decision has been issued does not foreclose a subsequent application that is premised on materially different plans.[57] Moore v. Town of Islip Zoning Bd. of Appeals relied, in part, on a change in the plans as establishing that a zoning board erred in refusing to entertain a new application, stating:

The present application, although similar to the prior application in that it requested variances permitting the construction of a single-family residence on a substandard lot, differed substantially from the prior application in that the present application did not seek permission to construct a two-car garage or to vary the minimum side yard requirements of the zoning law.[58]

In contrast, where the change in plans does not materially affect those impacts of a proposed land use that were cited as a basis for the earlier denial, the board is not free to revisit and reevaluate those impacts.[59] It must be remembered that the question of whether an application has changed sufficiently to be materially different from one which a board has already considered is committed to the board’s discretion.[60]

6. Different Types of Structures

Where a board has granted previous area variances that are similar to those that are the subject of a current application, but which involved different types of structures, a denial does not constitute a different result on essentially the same facts.[61]

7. Change in Controlling Legal Standards

As to changes in the law, binding precedent dictates that determinations made under a legal standard that has subsequently substantively been modified are afforded little or no weight with respect to applications made under the current statutory criteria. In particular, New York’s highest court held that a zoning board’s earlier denial of an area variance under the old common law “practical difficulty” standard[62] does not mandate the same outcome on a subsequent application seeking variances for the same property under the now-effective statutory standard.[63]

8. Pattern of Previous Decisions

Not surprisingly, where a board has rendered a number of decisions reaching a consistent outcome, the courts may be more likely to conclude that the precedent embodying that pattern binds the board. In Nicholai v. McLaughlin, the court held that denial of a wetland permit required an explanation, where the planning board had on numerous prior occasions allowed greater encroachments into wetlands and wetlands buffers.^[64] Similarly, the First Department rejected a zoning board’s interpretation that a convenience store was not permitted as an accessory use to a gas station, where the board in a significant number of other cases granted permission, including to direct competitors of the applicant to allow precisely such a combination and, accordingly, dismissed the board’s attempt to explain why its permitting pattern was irrelevant.[65]

In contrast, where a board’s results on similar questions have been inconsistent, a decision is unlikely to be viewed as an arbitrary departure from precedent no matter which way the board decides the current matter (so long as it has a rational basis).[66] Inconsistency of prior determinations came into play in Mobil Oil Corp. v. Village of Mamaroneck Bd. of Appeals.[67] Therein, after denying a variance to allow a gas station to erect a canopy over its pumps on two occasions, the zoning board subsequently granted one to another gas station in the same zoning district in a similar location; yet it then denied a third application for a canopy on the subject property.^[68] The court held that the zoning board’s finding that the two prior denials rendered the landowner’s hardship self-created was irrational, as the board had “evinced a willingness to grant such an application” and that, consequently, the prior denials of the petitioner’s predecessor’s applications were irrelevant to the pending application.^[69]

A Land Use Board Can Consider the Potential Precedential Impact Its Determination May Have on Future Applications

Based on the significant role of precedent in the land use process, in making a decision, a board is empowered to consider the consequences its action might have on future land use applications involving similar facts.[70] For example, the Court of Appeals relied on the impact of precedent on zoning boards as a basis to hold that the decision denying a variance grounded on a board’s stated desire to avoid creating potentially adverse precedent was not arbitrary and capricious. The court stated

the Board was . . . entitled to consider that granting a variance for an illegally substandard parcel with 40 feet of frontage width could set a precedent within the neighborhood such that landowners of oversized parcels could illegally subdivide their land and seek an area variance to improve the substandard plot with the idea that two parcels with two houses are worth more than one parcel with one house.[71]

On a similar rationale, the Second Department explained that a board was within its rights to discount the pattern of development in close proximity to the property for which the variance was sought. Its analysis stated:

Although the petitioner introduced evidence that the variances he sought were consistent with conditions existing on neighboring properties, the petitioner introduced no evidence as to whether those comparators existed prior to the enactment of the ordinance, and the Board was permitted to consider that granting the requested variances could set a negative precedent and thereby undermine the existing ordinance.[72]

It is submitted that a board’s professed fear that its decision may have an undesirable precedential impact can often be overstated in light of the rule that minor actual nuances or a mere rational explanation of the board’s rationale can justify reaching a different result.^[73] The author suggests that in light of the flexibility afforded by that rule, employment by a board of a purported concern about setting precedent as a basis for its determination has the potential in some instances to be pretextual.

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Adam L. Wekstein is a founding partner of Hocherman Tortorella & Wekstein. He is first vice chair of the Local and State Government Law Section of the New York State Bar Association. His practice concentrates on land use, zoning, environmental and constitutional law and appellate practice. He appears regularly before municipal agencies and boards seeking land use approvals and environmental permits. He has lectured and/or written articles regarding various zoning, environmental law, property rights and constitutional issues for the Local and State Government Law and Environmental Law sections of the New York State Bar Association, Lorman Education Services, the Practicing Law Institute, The New York Zoning Law and Practice Report, The Urban Lawyer and the Westchester Municipal Planning Federation.

A version of this article previously appeared in Municipal Lawyer, the publication of the Local and State Government Law Section. For more information, please visit NYSBA.ORG/LSGL.

Endnotes:

[1] Hopefully, the rest of the article will be more useful.

[2] Cowan v. Kern, 41 N.Y.2d 591, 595 (1977); Matejko v. Bd. of Zoning Appeals of Town of Brookhaven, 77 A.D.3d 949, 950 (2d Dep’t 2010); Crilly v. Karl, 67 A.D.3d 793, 795, (2d Dep’t 2009), lv. denied, 14 N.Y.3d 709 (2010).

[3] 66 N.Y.2d 516, 518 (1985); Nicholai v. McLaughlin, 163 A.D.3d 572 (2d Dep’t 2018); Amdurer v. Village of New Hempstead Zoning Bd. of Appeals, 146 A.D.3d 878 (2d Dep’t 2017) (holding that where a zoning board failed to set forth a factual basis for failing to adhere to its prior determination on substantially similar facts, its determination had to be invalidated as arbitrary and capricious).

[4] Nicholai, 163 A.D.3d at 574 (“the planning board’s belated effort to provide such distinctions is not properly before us.”); see Matter of Lafayette Storage, 77 N.Y.2d 823, 826 (1991).

[5] Charles A. Field, 66 N.Y.2d at 520; Collins v. Governor’s Office of Employee Relations, 211 A.D.2d 1001 (3d Dep’t 1995).

[6] Charles A. Field, 66 N.Y.2d at 519–20 (citations omitted). Interestingly, in an observation that does not seem to play an explicit role in subsequent cases the Court stated that “it is often suggested that such an agency ‘has somewhat greater freedom than a common law court’…” Id. at fn 2.

[7] 66 N.Y.2d at 520.

[8] Id.

[9] Voutsinas, 166 A.D.3d at 636.

[10] O’Connor and Sons Home Improvement, LLC, v. Acevedo, 197 A.D.3d 1112, 1114 (2d Dep’t 2021), quoting Nicholai, supra. See Amdurer, 146 A.D.3d at 878–79 (annulling as arbitrary and capricious a zoning board’s determination which was contrary to an earlier decision on substantially similar facts without explanation for the divergence); Margulies v. Town of Ramapo, 226 A.D.3d 783, 785 (2d Dep’t 2024).

[11] See Nicolai, supra; Lyublinskiy v. Srinivasan, 65 A.D.3d 1237, 1239-1240, 887 N.Y.S.2d 119, 121 (2d Dep’t 2009) (holding that New York City’s Board of Standards and Appeals’ determination that it lacked authority to grant a special permit to legalize the enlargement of a residence to surpass the zoning bulk limitations was arbitrary and capricious where on a prior application for another property it had granted precisely such relief).

[12] Campo Grandchildren Trust v. Colson, 39 A.D.3d 746, 747 (2d Dep’t 2007); Aliperti v. Trotta, 35 A.D.3d 854, 854–55 (2d Dep’t 2006) (invalidating denial of a variance where the board had granted a previous application for the same property and articulated no rational basis for reaching a different result on essentially the same facts); Civic Association of Setaukets v. Trotta, 8 A.D.3d 482 (2d Dep’t 2004) (annulling an area variance allowing a property to be used in the same way in the same configuration as one denied one year earlier).

[13] Nicholai, 163 A.D.3d at 572 (“‘An agency’s failure to provide a valid and rational explanation for its departure from its prior precedent ‘mandates reversal’ regardless of whether the record otherwise supports the determination’ . . . (citations omitted))”; Lyublinskiy, 65 A.D.3d at 1239–40; Hamptons, LLC v. Village of East Hampton, 98 A.D.3d 738 (2d Dep’t 2012) (holding that where a zoning board failed to provide a factual basis for imposing conditions in a special use permit where it had not done so on a substantially similar application, those conditions were arbitrary and capricious); Lucas v. Bd. of Appeals v. Village of Mamaroneck, 57 A.D.3d 784, 785–86 (2d Dep’t 2008); Campo Grandchildren Trust, 39 A.D.3d at 747.

[14] See, e.g., Nicholai, 163 A.D.3d at 574; Amdurer, 146 A.D.3d at 879; Lyublinskiy, 65 A.D.3d at 1239–40; Lucas, 57 A.D.3d at 785–86; Campo Grandchildren Trust, 39 A.D.3d at 747; Aliperti v. Trotta, 35 A.D.3d at 854–55; Mobil Oil Corp. v. Village of Mamaroneck Bd. of Appeals, 293 A.D.2d 679, 681 (2d Dep’t 2002); Waylonis v. Baum, 281 A.D.2d 636, 638 (2d Dep’t 2001); Frisenda v. Zoning Bd. of Appeals v. Town of Islip, 215 A.D.2d 479, 480 (2d Dep’t 1995).

[15] Cowan, 41 N.Y.2d at 596; Monroe Beach, Inc., v Zoning Bd. of Appeals of City of Long Beach, 71 A.D.3d 1150, 1151 (2d Dep’t 2010).

[16] Voutsinas v. Schenone, 166 A.D.3d 634, 636 (2d Dep’t 2018) (“[T]he principles of res judicata and collateral estoppel apply to quasi-judicial determinations of administrative agencies, such as zoning boards, and preclude the relitigation of issues previously litigated on the merits”); Grasso Public Carting v. Trade Waste Commission of City of New York, 250 A.D.2d 454 (1st Dep’t 1998) (finding that where a commission was acting in a quasi-legislative, rather than quasi-judicial, capacity it did not have to explain deviation from a past policy).

[17] Palm Management Corp. v. Goldstein, 29 A.D.3d 801, 804 (2d Dep’t 2006), aff’d on other grounds, 8 N.Y.3d 337 (2007) (“the principles of res judicata and collateral estoppel apply to quasi-judicial determinations of administrative agencies, such as zoning boards, and preclude the relitigation of issues previously litigated on the merits”); see Voutsinas, 166 A.D.3d at 636; Calapai v. Zoning Bd. of Appeals of Village of Babylon, 57 A.D.3d 987, 989 (2d Dep’t 2008). Please note, however, that in the context of determining whether a challenge to the merits of an administrative board’s determination in an Article 78 proceeding should be heard by the Appellate Division or the Supreme Court under the substantial evidence or arbitrary and capricious standards, it is settled law that “[m]unicipal land use agencies like the Zoning Board are quasi-legislative, quasi administrative bodies …” as their hearings are informational rather than ones at which sworn testimony or the formal taking of evidence occurs. Halperin v. City of New Rochelle, 24 A.D.3d 768, 770 (2d Dep’t 2005), dismissed, 6 N.Y.3d 890 (2006), lv. denied, 7 N.Y.3d 708 (2006); see Francello v. Mendoza, 165 A.D.3d 1555, 1556–57 (3d Dep’t 2018). Therefore, whether a board is “quasi-judicial” may vary with context.

[18] Nicholai, supra (annulling a Planning Board’s denial wetland control permit for failing to adhere to prior precedent); Callanan Industries, Inc. v. Rourke, 187 A.D.2d 781 (3d Dep’t 1992).

[19] Nozzleman 60, LLC v. Village of Cold Spring Zoning Bd. of Appeals, 34 A.D.3d 682 (2d Dep’t 2006), lv. denied, 9 N.Y.3d 803 (2007).

[20] Voutsinas, supra.

[21] Christian Airmen, Inc. v Town of Newstead Zoning Bd. of Appeals, 115 A.D.3d 1319, 983 N.Y.S.2d 173 (4th Dep’t 2014).

[22] Hamptons, LLC, supra; Lyublinskiy, supra.

[23] Nicholai, supra.

[24] Take Two Outdoor Media LLC v. Board of Standards and Appeals of City of New York, 146 A.D.3d 715 (1st Dep’t 2017).

[25] Restuccio v. City of Oswego, 114 A.D.3d 1191 (4th Dep’t 2014).

[26] Grosso v. Dechance, 205 A.D.3d 1026, 1028 (2d Dept 2022) (which in upholding a zoning board’s denial of area variances reasoned: “[c]ontrary to the petitioner’s contention, the Zoning Board’s granting of two prior applications for area variances did not constitute a precedent from which the Zoning Board was required to explain a departure, as the petitioner failed to establish that the prior applications bore sufficient factual similarity to the subject application”); Todd Kramer v. Zoning Bd. of Appeals of Southampton, 131 A.D.3d 1170 (2d Dep’t 2015) (rejecting a challenge to denial of area variances where the applicants failed to demonstrate that three prior variances bore sufficient similarity to its application to require the zoning board to explain its departure from precedent); Gravino v. Young, 75 A.D.3d 601 (2d Dep’t 2010); Gallo v. Rosell, 52 A.D.3d 514 (2d Dep’t 2008).

[27] Expressway Development, Inc. v. Town of Gates Zoning Bd. of Appeals, 147 A.D.3d 1427 (4th Dep’t 2017) (confirming denial of a use variance where the applicant failed to establish the existence of favorable earlier determinations on essentially the same facts); Blandeburgo v Zoning Bd. of Appeals of Town of Islip, 110 A.D.3d 876 (2d Dep’t 2013) (holding that the petitioner failed to show sufficient similarity between prior variances for in-ground pools within the rear-yard setback and the current application to have required the zoning board to explain its departure); Kaiser v. Town of Islip Zoning Bd. of Appeals, 74 A.D.3d 1203 (2d Dep’t 2010); London v. Zoning Bd. of Appeals of Town of Huntington, 49 A.D.3d 739 (2d Dep’t 2008), lv. denied, 10 N.Y.3d 713 (2008); Conversions for Real Estate, LLC, v. Zoning Bd. of Appeals of Incorporated Village of Roslyn, 31 A.D.3d 635 (2d Dep’t 2006).

[28] Latuga v. Giannadeo, 140 A.D.3d 771, 772 (2d Dep’t 2016), lv. denied, 28 N.Y.3d 914 (2017) (“petitioners failed to establish that the case bore sufficient factual similarity to the subject application so as to require an explanation from the Board’); Todd Kramer, 131 A.D.3d at 1172 (confirming the denial of setback and area variances, finding that no explanation by the board for departure from prior precedent was necessary, where the petitioner failed to show that three earlier decisions bore sufficient factual similarity); Conversions Real Estate, LLC, 31 A.D.3d at 636.

[29] See Gallo, 52 A.D.3d at 516; Monte Carlo 1, LLC v. Weiss, 142 A.D.3d 1173, 1175 (2d Dep’t 2016); see generally Kaufman v. Inc. Village of Kings Point, 52 A.D.3d 604, 609 (2d Dep’t 2008) (finding that conclusory statements made by the village attorney at a public hearing were insufficient to establish that similar applications had been granted in the past).

[30] Falco v. Town of Islip Zoning Bd. of Appeals, 283 A.D.2d. 576, 576 (2d Dep’t 2001) (“petitioner did not put forth sufficient evidence of a change of circumstances or new facts that were not available at the time of her 1984 application for a zoning variance. Therefore, her 1999 application for a new hearing on the proposed variance for the subject property was properly denied . . .  (citations omitted)”).

[31] Gonzalez, 3 A.D.3d at 498.

[32] Olson v. Scheyer, 67 A.D.3d 914 (2d Dep’t 2009); Dejoy v. Zoning Bd. Appeals of Town of Babylon, 249 A.D.2d 389, 390 (2d Dep’t 1998); Montalbano v. Silva, 204 A.D.2d 457, 458 (2d Dep’t 1994).

[33] Waidler v. Young, 63 A.D.3d 953, 954 (2d Dep’t 2009).

[34] Monte Carlo 1, LLC, 142 A.D.3d at 1176; see Gallo, 52 A.D.3d at 516.

[35] Mobil Oil Corp., 293 A.D.2d at 681.

[36] Id..

[37] 63 A.D.3d at 954. See Nozzleman 60, LLC, 34 A.D.3d at 683.

[38] Waidler, supra.

[39] Waidler, supra; Take Two Outdoor Media LLC, supra; Nozzleman 60, LLC, 34 A.D.3d at 683.

[40] See Pesek v. Hitchcock, 156 A.D.2d 690, 691 (2d Dep’t 1989); cf. Obermeier v. Amelkin, 65 A.D.2d 574 (2d Dep’t 1978), aff’d, 49 N.Y.2d 807 (1980).

[41] Blandeburgo, 110 A.D.3d at 878 (confirming denial of a variance that would have allowed a pool to encroach in the back-yard setback notwithstanding that two similar variances had been granted because the prior determinations concerned properties that were not near to the subject property); see Pesek, 156 A.D.2d at 690–91 (upholding denial of area variances where the precedent which the applicant embraced related to properties situated in different neighborhoods); North Shore, F.C.P., Inc. v Mammina, 22 A.D.3d 759 (2d Dep’t 2005) (finding that where the location of the premises and the impacts of the proposals were different, the proposals “were not based on essentially the same facts”); see Brady v. Town of Islip Zoning Bd. of Appeals, 65 A.D.3d 1337, 1337 (2d Dep’t 2009), lv. denied, 14 N.Y.3d 703 (2010) (upholding the denial of a variance to allow swimming pool on a substandard lot, where there were no pools on deficient lots within 600 feet of the subject property and only seven pools on substandard lots were within the 300-home neighborhood in which that property was located).

[42] 127 A.D.3d 863 (2d Dep’t 2015).

[43] Id. at 865.

[44] See Blandeburgo, 110 A.D.3d at 878; see generally Hamptons, LLC, supra.

[45] Nozzleman 60, LLC, 34 A.D.3d at 682.

[46] Matejko, 77 A.D.3d at 950.

[47] Margulies, 226 A.D.3d at 785.

[48] Spandorf v. Bd. of Appeals of East Hills, 167 A.D.2d 546, 547 (2d Dep’t 1990).

[49] Pesek, 156 A.D.2d at 691.

[50] 41 N.Y.2d at 595–96.

[51] Pettit v. Bd. of Appeals of Town of Islip, 160 A.D.2d 1006, 1007 (2d Dep’t 1990) (the Board’s finding that there were “no material differences” between a proposed application and a prior one which had been denied less than a year before . . . “was clearly not arbitrary” or an abuse of discretion, as “there was ample evidentiary support therefor in the record” . . . and “[s]ince there was no change of facts or circumstances, the Board properly denied a rehearing . . . (citations omitted)”).

[52] Moore v. Town of Islip Zoning Bd. of Appeals, 28 A.D.3d 772, 772 (2d Dep’t 2006).

[53] 57 A.D.3d at 785–86.

[54] American Red Cross, Tompkins Co. Chapter v. Bd. of Zoning Appeals of City of Ithaca, 161 A.D.2d 878, 879 (3d Dep’t 1990) (“In our view, the record contains insufficient evidence evincing a change in circumstances sufficient to support respondent’s reversal of its previous position”).

[55] Cohen v. Village of Irvington, 29 Misc. 3d 1231 (Sup. Ct., Westchester Co. 2010).

[56] See, e.g, Pettit, 160 A.D.2d at 1007.

[57] Hurley v. Zoning Bd. of Appeals of Village of Amityville, 69 A.D.3d 940, 941 (2d Dep’t 2010) (stating that there was no merit to a claim that a zoning board was barred from granting variances where it had previously denied them to the same applicant, as revised plans materially changed aspects of the matter); Hunt v. Bd. of Zoning Appeals of Incorporated Village of Malverne, 27 A.D.3d 464 (2d Dep’t 2006).

[58] 28 A.D.3d at 773 (citations omitted).

[59]Voutsinas, 166 A.D.3d at 636.

[60] See Pettit, 160 A.D.2d at 1007 (finding to be controlling the denial of a variance less than a year earlier).

[61] Spandorf, 167 A.D.2d at 547.

[62] See generally Sasso v. Osgood, 86 N.Y.2d 374, 384 (1995) (“[w]e conclude Town Law § 267–b(3)(b) requires the Zoning Board 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’ if the area variance is granted, and that an applicant need not show ‘practical difficulties’ as that test was formerly applied.”); Cohen v. Village of Saddle Rock, 100 N.Y.2d 395 (2003) ( “the history of these amendments does not suggest that they were intended merely to codify the disparate attempts in the courts to define ‘practical difficulty’ . . . the earlier standards embodied in the Village and Town Laws. Rather, the statutory history supports petitioners’ position that the Legislature intended to replace the confusing ‘practical difficulty’ standard with a consistent test that weighed benefit to the applicant against detriment to the community . . .”).

[63] Pecoraro v. Bd. of Appeals of the Town of Hempstead, 2 N.Y.3d 608, 614 (2005) (“while the Board relied on its 1969 denial of a similar variance, it did not give estoppel effect to that decision. Nor could it do so since Town Law § 267–b was enacted after that determination.” (emphasis added)); see Josato, Inc., v. Wright, 288 A.D.2d 384 (2d Dep’t 2001).

[64] 163 A.D.3d at 574.

[65] Exxon Corp. v. Bd. of Standards and Appeals of City of New York, 128 A.D.2d 289, 296–99 (1st Dep’t 1987), lv. denied, 70 N.Y.2d 614 (1988).

[66] See Cipriano v. Bd. of Zoning Appeals of City of Glen Cove, 203 A.D.2d 362, 363 (2d Dep’t 1994) (“the record reveals that although some property owners, similarly situated, had been granted variances, others had not. Accordingly, it cannot be said that the petitioner in this case was unfairly singled out or that the Board completely abandoned its own precedent.”); see generally Terrace Court, LLC v. New York State Division of Housing and Community Renewal, 18 N.Y.3d 446 (2013); Cowan, 41 N.Y.2d at 596 (“there is no history of a consistently liberal board policy that was suddenly and dramatically changed to the disadvantage of [the applicant]”).

[67] Mobil Oil Corp., supra.

[68] Mobil Oil Corp., 293 A.D.2d at 457.

[69] The board’s putative effort to dismiss the precedential value of the intervening grant of a variance for the other gas station was rendered less effective by the finding in the resolution granting its earlier approval that the variance would be precedent “for the 10 other gas stations, including [the station of the applicant which was denied] located within the municipality.” Mobil Oil Corp., 293 A.D.2d at 459.

[70] Pecoraro, 2 N.Y.3d at 615, 781 N.Y.S.2d at 238; Bonadonna v. Bd. of Zoning Appeals of Incorporated Village of Upper Brookville, 230 A.D.3d 855, 858, 198 N.Y.S.3d 368, 371 (2d Dep’t 2023); C. Foster v. Dechance, 210 A.D.3d 1085, 1087, 178 N.Y.S.3d 786, 788 (2d Dep’t 2022); Parsome, LLC, v. Zoning Bd. of Appeals of Village of East Hampton, 191 A.D.3d 785, 788, 142 N.Y.S.3d 552, 555-556 (2d Dep’t 2021); Dutt v. Bowers, 207 A.D.3d 540, 542, 172 N.Y.S.3d 64, 66 (2d Dep’t 2022); Sacher v. Upper Brookville, 124 N.Y.S.3d 902, 904, 3 N.Y.S.3d 69, 70 (2d Dep’t 2015).

[71] Pecoraro, 2 N.Y.3d at 614, 781 N.Y.S.2d at 237.

[72] Bonadonna, 230 A.D.3d at 858, 198 N.Y.S.3d at 371. See Genser v. Bd. of Zoning Appeals of Town of North Hempstead, 65 A.D.3d 1144, 1147, 885 N.Y.S.2d 327, 330 (2d Dep’t 2009)( “granting the variance would not only set a negative precedent; it would also reduce the average lot width in the area, impairing the effectiveness of the zoning ordinance”). C. Foster, 210 A.D.3d at 1087, 178 N.Y.S.3d at 788 (“since the Board determined that no similar variances had been granted, it was permitted to consider the possibility that granting these variances could set a negative precedent within the area”).

[73] See Monte Carlo 1, LLC, supra.