Posted by: Patricia Salkin | February 10, 2021

NY Appellate Court Upholds Grant of Area Variance for the Construction of a Hot Tub

This post was authored by Matthew Loescher, Esq.

The petitioners are owners of residential property located in Putnam Valley. David Frazer and Alice Soloway are owners of residential property located adjacent to the petitioners’ property. Pursuant to chapter 144 of the Code of the Town of Putnam Valley – which governs freshwater wetlands, watercourses, and waterbodies – the Town of Putnam Valley Wetlands Inspector, issued a permit waiver to Frazer for the construction of a hot tub in a wetland buffer, subject to conditions. The Town of Putnam Valley Zoning Board of Appeals issued a determination granting the application of Frazer and Soloway for area variances related to the construction of the hot tub, subject to conditions. The petitioners commenced this proceeding pursuant to CPLR article 78 to annul the determinations of the Wetlands Inspector and the ZBA.

 The court found that contrary to the petitioners’ contention, the Wetlands Inspector considered drainage issues related to the hot tub and any adverse impact the hot tub might have on the wetlands, the wetlands buffer, and the lake, as evidenced by the fact that the permit waiver was specifically conditioned on the hot tub not discharging to the wetland or wetland buffer area. Additionally, the Wetlands Inspector noted that the work was to be conducted in a previously disturbed area. As such, the record reflected that the ZBA engaged in the required balancing test and considered the five relevant statutory factors in granting the application for area variances related to the hot tub. Accordingly, the court denied the petition and dismissed the proceeding on the merits.

 Bernstein v Putnam Valley Zoning Board of Appeals, 2021 WL 484034 (NYAD Dept. 2/10/2021)


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