Petitioner’s purchased an 8,400 square foot parcel in a “barrier beach area” on Fire Island where there are no roads or cars. The zoning ordinance prohibits in-ground swimming pools in the area, but allows for above-ground swimming pools only on lots that are 12,000 square feet or larger. The applicable regulations has been in effect prior to 1991 when the petitioner’s purchased the parcel. The Town Code had provided for a renewable temporary special exception applicable to parcels less than 12,000 square feet, which permitted people with neurological or muscular diseases to erect and maintain above the ground swimming pools for physical therapy purposes. This provision was repealed on December 12, 2006.
After the petitioners’ building permit application to construct an above-ground pool was denied, they applied for an area variance which was also denied. The appeals court concluded that the zoning board properly based its denial on the balancing test and consideration of relevant factors set forth in Town Law sec. 267-b(3)(b). The Court found that the evidence before the zoning board supported a rational conclusion that granting the variance would produce an undesirable change in the neighborhood or a detriment to nearby properties. The Court also said that the board was entitled to consider the effect its decision would have as precedent, and that the board properly concluded that the hardship was self-created. Further, the Court said that the board properly rejected the argument that since the proposed pool would meet the relevant property setback requirements it would no greater impact than a pool on a standard lot, since such argument would render meaningless the town board’s legislative decision to prohibit above ground swimming pools on all lots less than 12,000 square feet.
King v Town of Islip Zoning Board of Appeals, 2009 WL 4985235 (N.Y.A.D. 2 Dept. 12/22/2009).
The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2009/D25467.pdf
For a related opinion see:http://lawoftheland.wordpress.com/2009/10/10/area-variance-denial-for-above-ground-swimming-pool-upheld/
