Petitioner owns a waterfront parcel at the end of a private road. In 2006 he secured a tidal wetlands permit from the NY DEC which authorized construction of a dwelling on piles within a footprint of approximately 30.4 feet from the southerly line of the property. From there he applied to the village to obtain a building permit to construct a 3,654 square foot dwelling in accordance with the DEC. The permit was denied since it did not meet the setback requirements, the minimum lot-size requirements or the requirement that it was to be constructed at no less than 12 feet above mean sea level. After providing reports from experts and having several hearings, the Board approved a variance for everything except the elevation requirement. The petitioner then commenced this action in which was eventually granted by the Supreme Court when they directed that the elevation variance be approved. The members of the Board appeal that decision.
Courts may set aside a zoning determination only where the record reveals that the board acted illegally or abused its discretion. The Appellate Division finds that the record supports the Board’s denial of the elevation variance and there does not appear to be any abuse of discretion. The Board conducted an extensive hearing, reviewed maps, photographs and aerial photos as well as scientific data concerning the area in question. Also, a number of arguments supported by expert testimony were presented indicating evidence that the proposed construction would affect flooding and expose groundwater to potential contamination. Therefore, the original determination should not have been disturbed and the Supreme Court decision is reversed.
Jonas v. Stackler, 2012 WL 1939964 (N.Y. A. D. 5/30/12)
The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2012/2012_04171.htm
Interesting decision, particularly since it was the ZBA that appealed to the appellate court.
By: Mindy L. Zoghlin on August 6, 2012
at 10:40 am