Posted by: Patricia Salkin | April 4, 2015

NY Appellate Court Upholds ZBA’s Granting of Area Variances and Finds Plaintiff Lacked Standing

Respondents Steven Kitchen and Jennifer Kitchen owned real property near Lake George in the Town of Queensbury. To facilitate the construction of a residence on the property, the Kitchens applied to Town  Zoning Board of Appeals for area variances requesting relief from requirements of the Code regarding removal of vegetation and setback requirements for stormwater infiltration devices, and the ZBA granted the Kitchens’ variance requests.   Petitioner David M. Klein, a professional engineer who claimed to be representing a number of neighbors opposed to the Kitchens’ project, requested determinations from the Town’s zoning administrator on a number of issues concerning the project, and appealed to the ZBA, which dismissed the appeal for lack of standing. Petitioners commenced this proceeding seeking review of the ZBA’s determinations to grant the area variances and of the dismissal of Klein’s appeal.

Here, the notice of appeal to the ZBA listed Klein’s engineering firm as the appellant and Klein as the appellant’s agent. Since neither Klein nor his firm exhibited any specialized harm and did not own property near the Kitchens’ property, the court found that Klein did not have standing in his individual capacity or as an agent for his firm. Accordingly, the court affirmed the ZBA’s dismissal due to lack of standing.  As to the granting of the area variance, members of the ZBA acknowledged the potential problems from clearing so much vegetation from the property, but were impressed by the Kitchens’ extensive efforts to mitigate the impact by including stormwater mitigation measures that did not exist on other neighboring properties. Therefore, considering the various information presented at the extensive hearing that was continued over the course of several months, and giving due deference to the ZBA, the court found that the ZBA’s determination to grant the area variances was rational and not arbitrary.

Fund for Lake George, Inc. v Town of Queensbury Zoning Board of Appeals, 2015 WL 1057910 (NYAD 3 Dept. 3/12/2015)

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2015/518831.pdf


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