Prior to December 12, 2006, the Town Zoning Code allowed for above ground pools on lots of 12,000 square feet or larger, and also provided a procedure for a renewable temporary special exception enabling a person with certain specified neurological or muscular disease to erect or maintain an above-ground swimming pool for five years where the lot was less than 12,000 square feet. Effective December 12, 2006, an amendment to the zoning code repealed the special exception provision and added a new section to the code which provides, “[a]boveground swimming pools shall be permitted as an accessory use on a parcel of land having less than 12,000 square feet only after application is made to and granted by the…Zoning Board of Appeals.” On December 18, 2006 the petitioners applied for a building permit to construct an aboveground pool on their 10,000 square-foot lot. The permit was denied and the petitioners appealed to the zoning board of appeals for an area variance which was subsequently denied. The petitioners appealed.
The appeals court, in upholding the zoning board’s denial, noted that when the Town amended its zoning code, it specifically eliminated the option for a special exception for aboveground swimming pools, and by so doing, “the Town board signaled that no swimming pool on a lot smaller than 12,000 square feet was consistent with the general zoning plan.” The Court found that with respect to the zoning board’s review, the Board properly applied the required balancing test, considered the relevant statutory factors, and that its decision had a rational basis and was not arbitrary and capricious. The Court pointed to evidence in the record including the fact that there were no swimming pools on substandard lots within 600 feet of the petitioners’ property, and out of the 300 homes in the community, there were only seven permanent aboveground swimming pools on substandard lots. Further, the record reveals that four of the pools were erected prior to the amended zoning code, one was on an 11,645 square foot lot, and only two were allowed pursuant to a variance. The court stated that the fact that two variances had been granted, neither of which involved lots located near the subject property, did not constitute precedent requiring the zoning board to explain a departure.
The Court concluded that given the unique nature of the community (Fire Island), the zoning board’s determination that the proposed pool would constitute an overintensification of the development on the property and produce an undesirable change in the neighborhood was not irrational.
Brady v. Town of Islip Zoning Board of Appeals, 2009 WL 3135924 (N.Y.A.D. 2 Dept. 9/29/2009).
The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2009/D24450.pdf
