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Nilsson v. Department of Envtl. Protection of N.Y.

ELR Citation: 37 ELR 20077
Nos. No. 37, (N.Y. Ct. App., 04/03/2007)

New York's highest court ordered the modification of a lower court decision reversing a local agency's denial of a landowner's request for a variance to build an underground sewage treatment system within the New York City watershed. The agency denied the variance application because the landowner failed to propose adequate mitigation measures for stormwater runoff and failed to provide information on his other real estate holdings in the area to demonstrate hardship. The lower court correctly concluded that the agency acted beyond the scope of its authority in considering stormwater runoff issues and impervious surface impacts for which no variance was required. Likewise, the court correctly concluded that it was an abuse of discretion to deny the variance application on the basis that the landowner did not provide information on his other real estate holdings "in the immediate vicinity" of the subject parcel. The agency, however, may reasonably request information about an applicant's contiguous real estate holdings because an applicant who could combine lots may be able to minimize any hardship. Because the landowner failed to provide information concerning contiguous holdings to the agency, the question whether he demonstrated substantial hardship must be remitted to the agency for reconsideration.