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DECISIONS Young’s e-mail address is gyoungnlj.com. a new york statute governing the process of evaluating zoning variance applications occupies the field, pre-empting inconsistent local laws, the New York State Court of Appeals said on July 2. Cohen v. Board of Appeals of the Village of Saddle Rock, No. 2003 NYSlipOp 15697. Seeking to build a home, petitioner Jack Cohen applied to his village government for a variance from certain zoning requirements. Similarly, another couple, the Russos, applied to their village for a height variance so they could install a wrought-iron gate. Both applications were denied, as were both petitioners’ appeals to their local zoning appeal boards, on the ground that neither Cohen nor the Russos had demonstrated “practical difficulties” or “undue hardships” if forced to stay within the confines of existing regulations. Cohen appealed to the county trial court, arguing that his village should have applied the balancing test codified in the state’s Village Law § 7-712b(3). The trial court agreed and an intermediate appellate court upheld the trial court’s ruling. The Russos’ case followed the same path. Affirming, the state’s highest court said that the state legislature enacted § 7-712-b(3) with the intent to pre-empt enactment of conflicting local laws, such as those that prevented the petitioners from getting the variances sought. That statute provides that a local zoning appeals board “shall” weigh the benefit to the applicant against the detriment to the health, safety and welfare of the community. While it acknowledged that state law allows villages to amend or supersede the state’s village law in certain instances, the high court concluded that here the state had evinced an intent to “occupy the field” of the variance application and review process.

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