First time’s the charm for CMM’s Richard DeMaio, who argued his first appeal in the Appellate Division, Second Department, and won! The Court’s decision is a spectacular outcome for our client, a Village on the East End, and demonstrates why municipalities turn to CMM for guidance with all aspects of their operations.

The appeal concerned the 2017 denial of a homeowner’s application for an area variance by the Village’s Zoning Board of Appeals (ZBA) with respect to lot size. The homeowner challenged the denial in Suffolk County Supreme Court via an Article 78 petition, but the Court denied the petition and dismissed the proceeding. Trying once more, the homeowner – seeking to subdivide the property into two lots – appealed that decision to the Appellate Division, Second Department, which sits in Brooklyn.

Under the guidance of CMM Senior Partner Scott Middleton, DeMaio and Hayley Gregor drafted the appellate brief, outlining why the Supreme Court’s decision should be upheld on appeal. In his first oral argument before the Appellate Division, DeMaio argued that the Supreme Court properly found that Village’s denial of the variance application had a rational basis, because allowing a second lot on a property of less than the square footage set forth in the Village Code would cause an undesirable change in a neighborhood characterized by lots much larger than required by the Code. In its decision, the Appellate Division agreed, noting that the ZBA “engaged in the required balancing test and considered the relevant statutory factors.” Moreover, the Court noted that the homeowner was presumed to have known about the applicable zoning restrictions when he purchased the property, and therefore, any hardship was “self-created.”

This result is a major win for the Village, supporting its ability to make zoning decisions that preserve its character. Learn more about our Municipal and Appeals practices and call us at (631) 738-9100 for guidance.