Goldberg had a common easement for a walkway that cut through two parcels of land owned by the co-defendant. The co-defendant sought to build a house that on the second story spanned the walkway at a height of twelve feet. The structure would be supported by posts and would include motion sensor lights to illuminate the common walkway. The ZBA granted the variance to enable the house to be built. Goldberg filed suit against the Zoning Board of Appeals of Long Beach (ZBA), claiming that the ZBA’s grant of the variance was arbitrary and capricious and she sought a preliminary injunction to enjoin the construction and for a final judgment declaring that the variance would interfere with a common walkway easement. The trial court annulled the ZBA’s determination and the appeals court reversed.
The appeals court found that the ZBA conducted a substantial hearing, viewed photographs, graphic renderings, aerial photographs, and variances grounded elsewhere in the community. Further the ZBA found that the variance was not substantial, the benefit could not be conferred using other methods, and that there would be no adverse impact on the environmental characteristics of the community. Thus, the Appellate Division stated the ZBA based their judgment on sufficient evidence and made a rational decision when balancing the relevant interests.
Additionally, the appellate court determined that the trial court should have declared the variance would not adversely interfere with the petitioner’s common walkway easement. The court stated that walkway easements afford only a right in passage, not any right in the walkway itself. Further, the burdened party may alter the walkway, through narrowing, covering or locking the walkway, so long as the benefiting party’s use of the walkway is not impaired. The court found that the petitioner could not show that their use of the walkway would be impaired, as the petitioner’s concern that the walkway would be unlit and dangerous are meritless because the plans provide for the walkway to be lit and for the structure to be more than tall enough at twelve feet in height.
Goldberg v. Zoning Board of Appeals of City of Long Beach, 2010 WL 5095316 (N.Y. A.D. 2 Dept,12/14/ 2010)
The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2010/2010_09265.htm
