Petitioners originally brought an action challenging the decision of the zoning board of appeals which granted a variance for a swimming pool and a deck. That decision was affirmed by the trial court and plaintiffs appealed. Petitioners own property adjacent to the subject oceanfront property in Long Island. The owners of the subject property proposed to demolish a non-conforming house and deck, and to construct a conforming house in its place. Along with the house, the owners proposed to construct a swimming pool that would required a 15.7 foot setback variance from the requirement that the pool be at least 25 feet from the toe of the sand dunes as well as a 385 square foot deck that needed a variance from the requirement that decks be no more than 200 square feet. The zoning board granted the pool variance and partial relief for the deck by only allowing it to be 300 square feet instead of 385 feet.
The appellate court upheld the decision finding that the board’s balancing of the relevant statutory factors to grant an area variance was rational. Petitioners also claimed that the benefit sought by the owners of the subject property could be obtained by building the house and other structures further away from the ocean, but the zoning board determined this would detrimentally affect other homeowners’ views of the ocean and so the benefits could not be obtained in this way. Additionally, the board found that the swimming pool would not detrimentally affect the dunes or the environment. The board partially granted relief for the deck because the owners were to remove the non-conforming house and deck and this justified at least some relief for the owners. The court noted that there was little evidence that the variances would adversely impact any neighborhood or environmental conditions so, in addition to the other justifications provided, the court determined that the board’s decision was not arbitrary and capricious and the lower court did not err in dismissing the complaint.
Friedman v. Board of Appeals of the Village of Quoge, 2011 WL 1902219 (N.Y.A.D. 2 Dept. 5/17/2011).
The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2011/D31304.pdf
