It has been almost 20 years since the New York State Legislature amended both the Town and Village Laws to bring a measure of statewide consistency to the variance application and review process. Since then, when making determinations on applications for area variances, for example, zoning boards of appeals have been under an obligation to “weigh the benefit of the grant to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted”1 and to consider five specific factors2 set out in the amended statutes.3
The statutory factors do not include “misrepresentations” or “deceitful conduct” by the applicant, although prior to the adoption of these amendments to the Town and Village Laws, the Appellate Division, Second Department, had ruled that deliberate misrepresentations and deceptions by a municipal applicant, standing alone, permitted the denial of requested variances. For example, the 1978 decision of Matter of Ostroff v. Sacks4 involved a homeowner’s representation to a local zoning board that a kitchen to be installed on the second floor of his single family residence, in a single family residential zone, was to be the sole kitchen on the premises. Thereafter, it was learned that the homeowner had installed kitchens on both the first and second floors of the premises, which were equipped with separate entrances. The Second Department upheld the denial of a subsequent application for an area variance, ruling that because the homeowner had engaged in subterfuge during his initial application, he was estopped from having his subsequent application for an area variance approved.
