Posted by: Patricia Salkin | December 26, 2012

NY Appellate Court Upholds Denial of Area Variance for Two-Family Dwelling Despite 12 Homes Existing on Unofficial Road

Petitioners applied for a building permit to construct a two-family dwelling on two adjacent lots.  Despite the fact that 12 houses already existed on the street, the building inspector denied the permit on the grounds that the road was not an “official” road within the Village as required by N.Y. Village Law sec. 7-736.  Petitioners then appealed to the zoning board for an interpretation that the road was not “unofficial” and in the alternative for an area variance to enable them to build the dwelling.  The zoning board denied both requests and they appealed.  The lower court upheld the board’s decisions and the appellate court affirmed.

The appellate court noted that the submissions made by the Planning Board, the Building Inspector, and the Fire Department which established that the road  was not adequate to serve an additional home. The paved portion of road varied from 15 to 21 feet wide, as opposed to the minimum Village standard, and notwithstanding that the road remains in use, it lacks a turnaround, adequate curbing, drainage, sidewalks, and a means of safe access for emergency responders, the effects of which would be worsened by construction of another dwelling and the addition of two more families. The board considered all of the statutory factors and concluded, among other things, that the requested variance was substantial and the alleged difficulty was self-created. The court also noted that the Village had proposed reducing certain of the requirements to enable the petitioners to proceed with construction of the proposed dwelling, but that the petitioners summarily rejected the proposal.

Pinnett v Zoning Board of Appeals of Village of Mount Kisco, 2012 WL 6684771 (N.Y.A.D. 2 Dept. 12/26/2012)

The opinion can be accessed at:  http://www.nycourts.gov/reporter/3dseries/2012/2012_09067.htm


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