The petitioner’s application for certain setback and area variances needed to maintain an existing cabana and retaining wall was denied by the zoning board of appeals. Both the cabana and the retaining wall were completed prior to the Town amending its zoning ordinance, which makes the uses nonconforming since the cabana height is 14.97 feet and the new limit if 14 feet; and the retaining wall was set back less than one foot from the property line and the new regulation requires a minimum four foot setback. Although the petitioner never obtained a building permit for the cabana and retaining wall, the petitioner did apply to the zoning board of appeals for “permission to maintain” these improvements. The Trial Court granted the petition seeking to annul the determination of the zoning board of appeals.
In upholding the Trial Court’s decision, the Appellate Court noted that the general rule in New York with respect to nonconforming uses or structures in existence when a zoning ordinance is enacted, is that they are constitutionally protected and will be permitted to continue. Since both the cabana and the retaining wall complied with the requirements at the time they were constructed, the Court said they are entitled to nonconforming status even though the petitioner failed to obtain a building permit prior to construction. Citing prior precedent, the Court said, “[a] use which is otherwise lawfully maintained may be continued as a nonconforming use although the user failed to procure or renew a license, certificate, or other permit required by law.” See, Matter of Kennedy v. Zoning Bd. of Appeals, Town of N. Salem, 205 A.D. 2d 629, 631.
Further, the Appellate Court agreed that the variance denial by the zoning board of appeals lacked a rational basis. The Court noted evidence presented at the hearing that demonstrated that the impact of the request variance was de minimis and that there was no evidence that it would cause a detriment to the health, safety or welfare of the community.
Cinelli Family Ltd. Partnership v. Scheyer, 2008 WL 1903553 (N.Y.A.D. 2 Dept. 4/29/2008).
The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2008/D19081.pdf
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