Posted by: Patricia Salkin | January 19, 2008

NY Appellate Court Modifies Conditions on Permit for Accessory Building

Zoning boards in New York are authorized to impose appropriate conditions upon the granting special permit and variance applications, but these conditions must be reasonable and aimed at minimizing adverse impacts to an area that might result as a result of the granting of that permit.  Courts will typically annul conditions that are unreasonable or improper.  This case presents examples of conditions that are both reasonable and unreasonable.             

Although the petitioner’s hearing testimony and evidence submitted to the zoning board of appeals in support of her application for an accessory building established that the ways in which she intended to use the proposed structure would qualify as “accessory uses” under the Town Code, board members still had concerns that she might use the structure as additional living space.  As a result, the Board granted the permit request subject to a number of conditions including: the structure could not include a fireplace or wood burning stove; there could be no fixed interior stairs; and there could be no second floor.  Another condition provided that the proposed accessory building may never be used as habitable living space.                                                                       

The Appellate Court noted that the first three conditions, essentially design elements, were not specifically prohibited in an accessory building under the Town Code.  Further, the Court commented that there was no evidence in the record to suggest that by including them in the structure, the petitioner intended to use the building for anything other than an accessory building for allowable accessory uses.  Therefore, the Court upheld the lower court’s annulment of these conditions.  However, the Court upheld the condition prohibiting the structure from being used as habitable living space, determining that this condition was neither unreasonable nor improper, and was wholly consistent with the Town Code.  

Rendely v. Town of Huntington, 44 A.D. 3d 864, 843 N.Y.S.2d 668 (2nd Dept. 10/16/2007). 

The opinion can also be accessed at:

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