Posted by: Patricia Salkin | October 17, 2018

NY Appellate Court Upholds Denial of Area Variance for Dock on Waterfront Property

This post was authored by Matthew Loeser, Esq.

Petitioners applied for and were denied area variances to build a dock on their waterfront property in Lloyd Harbor. Petitioners contend that the ZBA’s denial of the application lacked a rational basis and was arbitrary and capricious. The Supreme Court denied the petition and dismissed the proceeding.

 

The record reflected that although the ZBA inaccurately characterized and interpreted an open space easement subject to a condition subsequent that burdened the property, the ZBA’s denial of the application was not based on those errors. Here, the evidence before the ZBA supported its conclusion that the proposed variances would produce an undesirable change in the character in the neighborhood, as it would contribute to an undesirable proliferation of long, fixed docks. Furthermore, the petitioners’ own expert testified that he had prepared an alternative permit application that fully conformed with the zoning code. Accordingly, the court held that the Supreme Court properly denied the petition and dismissed the proceeding to annul the ZBA’s determination.

 

Kleinknecht v Brogan, 2018 WL 5020285 (NYAD 2 Dept. 10/17/2018)

 


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