Following the granting of an area variance to legalize an existing fence that was over the height limit and two small sheds on the property that did not meet setback requirements, neighbors challenged the board’s determination alleging, among other things that it was arbitrary and capricious and that the Board failed to file its written decision in the office of the town clerk within 5 business days are required by Town Law 267-a[9]. The trial court dismissed the appeal and the appellate court affirmed, noting that the Town Law does not specify a sanction for failure to comply with the five-day filing requirement, and that the Board had offered a reasonable explanation for its delay, which was not extensive. Further, the Court agreed that the Board’s justification for the granting of the variances was based on specified evidence, despite the fact that the decision did not specifically address each of the five factors separately, and that since local boards have broad discretion in considering the applications for area variances, here the board was entirely appropriate when it based its decision in part upon a site visit to the property in question.
Frank v Zoning Board of the Town of Yorktown, 917 N.Y.S.2d 697 (A.D. 2 Dept. 3/1/2011)
The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2011/D30235.pdf
