Petitioners applied for and received a permit to reconstruct the existing retaining walls in their backyard. During the reconstruction process, they also reconstructed a curbed, exterior stairway in the backyard, which was later discovered to be in violation of the Zoning Code which required that “no side yard shall be less than four feet in width.” The petitioners then requested an area variance to enable them to continue to use the stairs. The zoning board granted the variance on the condition that the existing stairway be set back at least two feet from the Westerly boundary of the premises. The petitioners appealed and the trial court denied the petition, but the appellate court reversed.
The appellate court held that while the zoning board does possess the authority to impose conditions on the granting of variances, in this matter the condition imposed was arbitrary and capricious. The Court found no evidence that it was even feasible to comply with the condition. The Court noted that the stairway was connected to the retaining wall and that there was no evidence in the record as to whether part of the wall would have to be moved to comply with the condition, nor was there a discussion as to possible adverse effects involved with moving a retaining wall. The Court also noted that there was a lack of evidence in the record as to the feasibility of narrowing the steps.
Gentile v Village of Tuckahoe Zoning Board of Appeals, 2011 WL 3715413 (N.Y.A. D. 2 Dept. 8/23/2011)
The opinion may be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2011/D32121.pdf
