Petitioners had been granted an area variance to construct a roof over the deck on the side of their house. The Code Enforcement Officer determined that the petitioners exceeded the variance by using materials that at least temporarily enclosed the deck on three sides. The petitioners then applied for a second variance for the additional construction, and such variance was denied. On appeal, the appellate court concluded that on the record, the zoning board failed to engage in the required five-part statutory balancing test and as such, the denial should be annulled. However, the Court said that the trial court should have remitted the matter back to the zoning board of appeals for a new determination on the application for the second variance.
Nye v Zoning Board of Appeals of the Town of Grand Island, 2011 WL 589499 (N.Y.A.D. 4 Dept. 2/18/2011).
The opinion can be accessed at: http://www.courts.state.ny.us/ad4/court/Decisions/2011/02-18-11/PDF/0208.pdf
