Posted by: Patricia Salkin | June 2, 2016

NY Appellate Court Holds Board’s Grant of Prior Applications Did Not Constitute a Precedent from Which It Was Required to Explain a Departure

The petitioners, property owners, sought several area variances from the Board of Zoning Appeals of the Town of Smithtown, including variances to: increase the square footage of an existing barn in their rear yard from 750 square feet to 1,258 square feet; reduce the minimum setback in their side yard from 16 feet to 8 feet to accommodate an existing 300–square–foot barn; and reduce the minimum paddock setbacks in their side yards from 16 feet to 2 feet on the west side and from 16 feet to 5 feet on the east side. The Board granted the variance to increase the size of an existing barn from 750 square feet to 1,258 square feet with the condition that the barn be moved so that it was 36 feet from the petitioners’ rear property line and that a vegetative buffer be planted between the barn and their rear property line. The Board denied the variance to reduce the minimum side yard from 16 feet to 8 feet to accommodate an existing 300–square–foot barn. The Board allowed a variance of the side yard paddock setback to 10 feet on both sides rather than the requested setbacks of 2 feet on the west side and 5 feet on the east side. Property owners brought this proceeding to review the determination of Town Zoning Board of Appeals partially denying their application for area variances. The lower court denied the owners’ petition and dismissed the proceeding.

On appeal, petitioners’ contention was that the Board’s granting of a certain prior application for area variances constituted a precedent from which the Board was required to explain a departure. However, the petitioners failed to establish that the case bore sufficient factual similarity to the subject application so as to require an explanation from the Board. Moreover, here, the Board found that the difficulty with respect to the paddock fencing was self-created, as the petitioners built the structures in question without first obtaining building permits. The Court therefore found that the Board’s finding was not arbitrary and capricious.

Latuga v Giannadeo, 31 NYS3d 206 (NYAD 2 Dept. 6/1/2016)


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Categories

%d bloggers like this: