The plaintiffs live fifty feet from the residence of the Sacks, who were recently issued a certificate of occupancy by the Town of East Hampton. The plaintiffs appealed the issuance of the certificate to the defendant Zoning Board of Appeals claiming the structure violated the City’s height requirements. The Zoning Board of Appeals found the certificate was properly issued, and the plaintiff appealed to the Supreme Court, Suffolk County. The Supreme Court transferred the controversy to the Supreme Court, Appellate Division, Second Department due to the existence of a question of substantial evidence. The Appellate Division found there was no question of substantial evidence, but retained jurisdiction none the less and confirmed the determination of the Zoning Board of Appeals.
Addressing the merits of the case, the court stated the plaintiff had the burden at a hearing before the Zoning Board of Appeals “to demonstrate that the certificate of occupancy was improperly issued.” After the public hearing, the determination of a zoning board of appeals should be affirmed if the determination has a rational basis and is supported by substantial evidence. A determination will be set aside where the determination was made illegally or arbitrarily, among other factors. The Appellate Division found the plaintiffs failed to meet their burden of showing the certificate granted to the Sacks should not have been issued, as the plaintiffs’ own expert stated that one of the height measurements may have been inaccurate and that “one alleged nonconformity does not, in fact, exceed the structure’s permissible height under the Town’s Pyramid Law, when the relevant distance for comparison is measured from the nearest property line. . . .” Given these deficiencies, the court found the Zoning Board of Appeals’ determination was based upon sufficient evidence and confirmed the issuance of the certificate.
Haberman v. Zoning Board of Appeals, 2011 WL 2571586 (N.Y. App. Div., 2d Dep’t, 6/28/2011)
The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2011/2011_05707.htm
