The town zoning ordinance provided regulations in an appendix governing lot area and lot width, front, side and rear yard requirements. In addition, setback requirements for accessory buildings not attached to principal buildings, which differ from those in the appendix where also contained in another section of the ordinance. The zoning board determined that the setback requirements set forth in the appendix applied to accessory buildings, such as the petitioner’s detached garage. Since the zoning board’s interpretation of the ordinance nullified the existence of the section dealing with accessory buildings, and the board’s determination that any hardship suffered by the petitioner’s was self-created was arbitrary and capricious, the appellate court remitted the matter to the zoning board for a de novo determination pursuant to the statutory balancing test set forth in Town Law 267-b(3) utilizing the set-back requirements for accessory uses contained in the zoning ordinance
McLiesh v. Town of Western, 2009 WL 5126605 (N.Y.A.D. 4 Dept. 12/30/2009).
The opinion can be accessed at: http://www.courts.state.ny.us/ad4/Court/Decisions/2009/12-30-09/PDF/1389.pdf
There used to be a statute in Steamboat Springs CO limiting a maximum hardship variance to 10% of the regulatory requirement but this article shows serious consideration of 50% and 75% variances for new commercial construction.
http://www.steamboatpilot.com/news/2008/jun/28/developers_concept_tall_order/
By: Kay Sieverding on January 10, 2010
at 2:06 pm
Here is another article about a proposed Steamboat Springs variance of 30 feet on a 73 foot height variance i.e. a variance of over 40%. The argument is that a 40% variance should be allowed because the development will use “green construction practices”, plans to offer short term rentals, has bathrooms, has outdoor fireplaces, and might engage in “gifting of space” to relocate injured skier transport facilities. I don’t understand the last at all because as I remember it, the only space needed was for one or two stretchers waiting inside the lift building for the ambulance. I remember there being public bathrooms near the location and outdoor fire places are usually considered to be bad for the environment so I guess that the proposed 40% + variances are based on the perceived public value of extra insulation, more expensive windows, maybe reusing some old bricks, some plantings ???…”
http://www.steamboatpilot.com/news/2009/jan/23/thunderhead_proposal_draws_large_crowd/
There was a wide street and sidewalk and views from the condos of the slopes but now the city apparently thinks that other condos will be more interesting to look at than skiers and slopes and therefore the city should allow developer use of the public right of way. “Most residents who own condominiums near the proposed project wrote or spoke out against it”
By: Kay Sieverding on January 10, 2010
at 2:25 pm