Court allowed a relaxed standard of review for area variances. George Pantelidis, owner of a five-story townhouse at 116 East 73rd Street in Manhattan, after receiving a permit from Buildings, began construction of a glass-enclosed staircase that connected the second and third floor of the townhouse through the rear yard. From the start of construction, the next door neighbor vigorously opposed the glass enclosure. At Buildings, the neighbor’s objections were addressed by the Borough Commissioner and his staff, who repeatedly affirmed the Pantelidis permit.

After the glass enclosure was completed, the neighbor appealed Buildings’ permit approval to the Board of Standards and Appeals. BSA revoked the permit, finding that the enclosure did not meet zoning specifications. Pantelidis then applied for an area variance. BSA denied the variance, finding that Pantelidis had failed to meet the five factors required for granting a variance.

Pantelidis filed an article 78 petition to annul BSA’s denial of the variance. The court ruled that it could not decide whether BSA’s determination was arbitrary or capricious without looking at the issue of Pantelidis’ good faith reliance on Buildings’ permit approval. The court ordered a hearing, ruling that BSA’s strict application of the zoning resolution’s five-factor test alone was not appropriate in this case. BSA appealed to the appellate division which upheld the trial court.

After the hearing, Justice Alice Schlesinger annulled BSA’s resolution and directed it to grant a variance, ruling that the standard for reviewing area variances, like the one sought by Pantelidis, was more relaxed than the standard for reviewing use variances. BSA’s findings that Pantelidis had failed to meet the five factors required for a variance were arbitrary. Justice Schlesinger further found that the requirement of uniqueness could be relaxed if the landowner was proceeding in good faith, the variance had minimal impact and financial hardship was shown. The court found practical difficulties in the need to connect the two floors and economic hardship in both the expense of construction and removal of the newly constructed extension. Finally, the court found that Pantelidis’ good faith reliance on the permit precluded a finding of self-created hardship. The court concluded that the glass-enclosed staircase was completed with a minimal variance, had no impact on the neighborhood and was not detrimental to public welfare.

Pantelidis v. BSA, N.Y.L.J., Jan. 18, 2006, at 19 (N.Y.Cty.Sup.Ct.) (Schlesinger, J.).