Posted by: Patricia Salkin | November 21, 2015

NY Appellate Court Upholds Decision to Grant Area Variances Allowing Tennis Court to Be Built in Front Yard of Nonconforming Lot

On December 11, 2013, 34 Cove, LLC, applied to the Zoning Board of Appeals of the Town of Southampton, for area variances which would permit it to build a tennis court in the front yard of its nonconforming lot. After a hearing, the Zoning Board granted 34 Cove’s application. The petitioner, who opposed the application, commenced this CPLR article 78 proceeding seeking review of the determination granting the application. 

At the outset, the court noted that the Zoning Board engaged in the required balancing test and considered the relevant statutory factors. It agreed with the petitioner that the alleged difficulty was self-created, and that proposed variances were substantial. However, the court found no evidence that the granting of the variance would produce an undesirable change in the character of the neighborhood, have an adverse effect on physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community. Furthermore, the Zoning Board had the authority, pursuant to section 330–76(c) of the Code of the Town of Southampton, to grant a variance to permit construction of the tennis court on a nonconforming lot without a principal structure. Since the Zoning Board’s decision was supported by a number of these factors, the court found its decision neither arbitrary nor capricious. As a result, it held the Supreme Court properly denied the petition and dismissed the proceeding. 

Borrok v Town of Southampton, 130 S.D. 3d 1024 (NYAD 2 Dept. 7/29/2015)


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