Posted by: Patricia Salkin | December 5, 2012

NY Appellate Court Dismisses Claim of Open Meetings Violations and Upholds Granting of Variances

Michael Braunstein, and others, collectively petitioners, own 150 acres of land on Copake Lake, New York, which includes an island separated from the mainland tract by a narrow canal.  Petitioners sought to divide the entire tract into eight lots, which included one 63 acre parcel encumbered by a conservation easement, and seven residential lots.  To facilitate this subdivision, petitioners applied for variances to build docks, a common walkway, and a bridge to the island, which would allow for vehicular transportation, pipe in utilities, and would pipe out waste to a septic system on the mainland.  The Board of Zoning Appeals of the Town of Copake (hereinafter “BZA”) granted variances for the walkway and for three docks, but denied the variances that corresponded to the island lot.  The petitioners sought review with the Supreme Court, Columbia County, but the petition was dismissed.  The petitioners appealed to the Appellate Division, Third Department, which affirmed.

The court first addressed an open meetings law issue.  Counsel for the BZA communicated with the members during the time between two meetings for the purpose of drafting a determination.  The court held there was no violation of the open meetings law because there was no indication that a quorum of the members met with the attorney outside a public meeting.

Next, the petitioners claimed the BZA’s denial of certain variances was not supported by the facts of the case.  The court provided that when a BZA evaluates an area variance application, the BZA is required to weigh the benefit to the land owner against the detriment to the public.  The BZA is also to consider whether the grant of the variance would result in an undesirable change to the neighborhood, if the benefit can feasibly be achieved without the area variance, whether the area variance is substantial, whether there will be an adverse effect to the environment, and whether the difficulty was self created.  BZA’s have broad discretion when evaluating an area variance, and the courts will not disturb their decisions unless it is clear it acted “illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure.”

The Third Department found the BZA did not act inappropriately in denying the island lot area variances.  The record revealed the BZA found that a house could be constructed on the mainland portion of the island lot without violating the setback requirements, that a bridge to the island would interfere with recreational activities, and that the variances were substantial because they resulted in construction to the water’s edge, and over the water despite setback requirements.  In addition, the BZA also found there could be adverse environmental impacts ranging from salt contamination due to road treatment in the winter, to the possible failure of the waste pumping system.  In reviewing the factors discussed, the court found the BZA “sufficiently considered” the relevant factors, and did not act in an arbitrary manner.

Lastly, petitioners challenged the BZA’s grant of variances for the docks.  Petitioners sought five docks, but the BZA granted only three, and required that they be at least 180 feet from the channel between the mainland and island.  The court found these restrictions were reasonable, as they limited the impact on the lake.  Finding this restriction was reasonable, the Third Department affirmed.

Braunstein v. Board of Zoning Appeals of the Town of Copake, 952 N.Y.S.2d 857 (3rd Dep’t, Nov. 1, 2012).

The opinion can be accessed here.

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