Posted by: Patricia Salkin | August 28, 2010

Zoning Board’s Denial of Area Variances for Above Ground Pool Upheld by NY Appeals Court

Petitioners purchased a 10,000 square foot parcel in 2000 in a zoning district that prohibits in-ground pools, but allows for above ground pools only on lots of 12,000 square feet or larger.  Prior to 2006, the Town had a provision allowing for temporary special exemptions for parcels less than 12,000 square feet for people who had certain medical conditions and needed to erect the above ground pools for physical therapy purposes. This special exception was repealed in 2006, signaling that no swimming pools would be permitted on lots smaller than 12,000 square feet. The petitioners applied for, and were denied, a building permit to construct an above ground pool.  They then sought an area variance to allow them to construct the pool on a 10,000 square foot parcel, as well as a rear-yard set-back variance.  Both were denied, and the petitioner filed the instant action.

Although the trial court agreed the plaintiffs and ordered the board to grant the variances, the appellate court reversed, reinstating the zoning board’s denials.  The Court noted that the board properly applied the statutory balancing test, and that its conclusions were neither arbitrary nor capricious and had a rational basis.  Specifically, the Court noted that evidence supported the board’s conclusion that granting of the requested variances would produce an undesirable change in the character neighborhood and would be detrimental to nearby properties, and that the hardship was self-created.  The Court mentioned that the ZBA considered evidence that there were no swimming pools on substandard lots within 500 feet of the petitioner’s property, and that in the community of approximately 300 homes, only two permanent above ground pools were granted by variance rather than by temporary special exception.  Further, the Court noted that the two variances that had previously been granted did not constitute precedent from which the ZBA was required to explain a departure since the petitioners failed to show that their case bore sufficient factual similarity.  Lastly, the court rejected the petitioner’s argument that the proposed swimming pool would have no greater impact than a swimming pool on a standard lot since this argument would render meaningless the Town’s legislative decision to limit above ground pools as of right to lots not less than 12,000 square feet.

Kaiser v Town of Islip, 74 A.D. 3d 1203, 904 N.Y.S.2d 166 (2 Dept. 6/22/2010).

The opinion can be accessed at:

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