Posted by: Patricia Salkin | November 27, 2015

NY Appellate Court Reverses Finding that ZBA’s Interpretation of an Ordinance that Den was an Addition, Rather than an Accessory Building, was Unreasonable and Irrational

Andrew Sabo was issued a building permit to construct an attached addition to his residence in Yorktown, consisting of a den and a large garage. Sabo’s neighbor, Nicholas Witkowich, commenced an administrative proceeding before the Zoning Board of Appeals challenging the issuance of the permit. Witkowich contended that the proposed structure was not an addition to the main residence, but was an impermissibly large “accessory” building under section 300–14(D) of the Town of Yorktown Zoning Ordinance. After a hearing, the ZBA issued a determination that the building permit had been properly issued based upon its interpretation of the ordinance. Witkowich commenced a CPLR article 78 proceeding to review the ZBA determination. The Supreme Court granted his petition and annulled the determination of the ZBA, and Sabo then appealed.

Section 300–3(B) of the ordinance in question defined an “accessory” building as a “subordinate building, whether or not attached to the main building via a breezeway or connecting corridor, the use of which is customarily incidental to that of a main building on the same lot.” According the language of this ordinance, an accessory building may be either a detached building or a building attached to the main building by a breezeway or connecting corridor. Here, the ZBA determined that the proposed structure, consisting of an attached den and garage area, was an addition to the main building, not an “accessory” building within the meaning of section 300–3(B) of the ordinance. In reaching its determination, the ZBA considered record evidence that the proposed den area was to be used as conventional living space and not a connecting “breezeway” or “connecting corridor.” Accordingly, the court held that the ZBA’s interpretation of the relevant provisions of the ordinance was neither unreasonable nor irrational. The Supreme Court’s holding was therefore reversed.

Witkowich v Zoning Board of Appeals of Town of Yorktown, 2015 WL 6982380 (NYAD 2 Dept. 11/12/2015)

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