The zoning board, by a vote of 6-0 (with one member absent), granted an initial application by the petitioner for an area variance to allow a proposed expansion of the petitioner’s home. The Town building inspector then notice cut-outs for windows on the west side of the addition which were not in accordance with the variance, and he issued a stop work order. The Town then issued a corrected notice of variance that provided that only windows on the second floor of the addition were prohibited. During the pendency of the stop work order, neighbors complained to the zoning board that the footprint of the addition was larger than permitted by the variance and that the side yard was narrower than permitted by the variance. Following a hearing, and by a vote of 4-3, the zoning board denied the application for an amended variance, holding that the application contained a request to maintain a side yard at a width 16 inches less that it had previously approved, and that the footprint was also larger than what had been previously approved.
On appeal, the Court found that the Board’s finding that the side yard width would be 16 inches narrower was baseless and that at most, it was 3.6 inches less than what had been previously approved. Further, the overall footprint was 6 inches larger on one side and 18 inches larger on the other side. Further, the petitioners had agreed they would remove the windows on the second floor. The Court therefore concluded that the requested amendments to the variance are de minimus and that the denial of the application for an amended variance was arbitrary and capricious.
Bout v Zoning Board of Appeals for the Town of Oyster Bay, 2010 WL 1078460 (N.Y.A.D. 2 Dept. 3/23/2010).
The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2010/D26605.pdf
