Following site plan approval for the construction of a new home, the petitioner built the home according to the approved plan only to discover that due to an error in the topographical data used by his architect, the completed home exceeded the allowable height by three feet. As a result, petitioner was denied a certificate of occupancy and applied to the zoning board of appeals for an area variance. The Board granted the variance but subject to the following conditions: the pool house, which was an accessory structure, had to be removed and an unobstructed view was to remain on the northerly side of the property. Petitioner appealed the conditions on the variance claiming that they were unreasonable and inconsistent with the spirit and intent of the zoning law, and he further alleged that the zoning board violated the Open Meetings Law in making its determination. The trial court annulled the board’s decision based on the Open Meetings Law violation.
While the appeals court agreed that the zoning board violated the Open Meetings Law, it reversed the annulment of the decision by the court below, noting that Courts have discretionary power to void any action taken by a public body in violation of the Open Meetings Law upon a showing of good cause, and that here, the petitioner failed to establish such good cause. Additionally, the Court found that the failure to follow the proper procedure in this case was nothing more than “mere negligence.”
Cunney v. Board of Trustees of the Village of Grand View, 2010 WL 1611059 (N.Y.A. D. 2 Dept. 4/20/2010).
The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2010/D26979.pdf
