Baker v. BrownlieBaker v. Brownlie
—In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Incorporated Village of Dering Hаrbor, dated May 16, 1998, which, inter alia, imposed various conditions upon the issuance of a building permit and the granting of an area variance, the petitioners aрpeal from a judgment of the Supreme Court, Suffolk County (D’Emilio, J.), dated June 2, 1999, which denied the petition and dismissed the proceeding.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by deleting the provisions thereof which sustained conditions one, three, five, six, eight, and nine and substituting therefor provisions granting the petition to the extent of annulling conditions one, three, five, six, eight, and nine; as so modified, the judgment is affirmed, without costs or disbursements.
The instаnt appeal marks the third time that the petitioners have been forced to seek judicial intervention to overturn administrative determinations by, among other entities, the respondent Zoning Board of Appeals of the Village of Dering Harbor (hereinafter ZBA), thwarting their quest to construct a new front porch on their waterfront home (see, Matter of Baker v Edwards,
In Baker II, after the building inspector rescinded his approval and the respondent ZBA issued a determination denying the petitioners’ application for an area variance and a building permit, this Court reversed, holding that the determination of the ZBA was arbitrary and capricious and directing the ZBA to issue the area variance and building permit “subject to any reasonable condition deemed necessary” (Matter of Baker v Brownlie, supra, at 528).
The law is settled that in considering applications for use or area variances, a zoning board is authorized to impose such reasonable conditions as (1) are directly related and incidental to the proposed use of the proрerty, (2) are consistent with the spirit and intent of the zoning ordinance, (3) and minimize any adverse impacts resulting from the variance (see, Matter of Charisma Holding Cоrp. v Zoning Bd. of Appeals,
As conditions one and six would preclude the construction of the center pergola, they are annulled. Notwithstanding that our decision in Baker II focused on issues surrounding the awnings and patio or porch deck, the petitioners have never withdrawn their proposal to construct the pergola supported by two permanеnt columns. Contrary to the contentions of the ZBA, the petitioners are not estopped from objecting to conditions one and six insofar as they would рreclude the erection of the pergola. Rather, to the extent that these conditions would preclude the construction of the pergola they are annulled as inconsistent with this Court’s order in Baker II.
Condition three required that the metal posts supporting the removable awnings be sunk two feet into the ground as a safety precaution. The ZBA failed to identify any relevant construction standard as the basis for this condition, and to that extent the condition is arbitrary and capricious. The posts supporting the awning need only be sunk to an appropriate depth consistent with any relevant building code provisions or construction standards.
Conditions eight and nine are annulled. Without setting forth any governing guidelines or standards, condition eight required the petitioners to satisfy the Village trustеes “with respect to
Cоndition five is arbitrary and capricious since it imposes unreasonable seasonal limitations upon the petitioners’ use of the removable awnings thеy propose to install.
Contrary to the petitioners’ unfounded contentions, however, conditions two and four, which, as the petitioners acknowledgе, merely recite various dimensions and courses of the porch, are not arbitrary or capricious. Those conditions merely set forth the metes аnd bounds of the proposed patio/poreh in accordance with the terms of the requested area variance. Indeed, the petitionеrs are not even aggrieved by these conditions. As an economy measure, the petitioners opted not to submit professionally-prepared architectural plans or drawings, relying instead on certain “sketches” and an amended survey of the property. As such, and with no professionally prepаred plans, it was not improper for the ZBA to impose conditions two and four. For the same reasons, condition seven is not arbitrary and capriciоus in requiring the petitioners to submit plans for the approval of the building inspector prior to construction. Clearly the ZBA reasonably may insist upon the preparation of acceptable plans establishing, inter alia, that the manner in which the pergola is supported by columns and is affixed to the house comрlies with appropriate construction methods. Contrary to the petitioners’ contentions, the Supreme Court in Baker I did not approve any construction plans but merely approved the application submitted to the Architectural Review Board which was based upon the petitioners’ sketches. Thus, thе ZBA acted appropriately insofar as condition seven requires the submission and approval of plans that comply with the pertinent provisiоns of the Village of Dering Harbor Code.
It is clear that the protracted litigation between the parties has been fueled by mutual antipathy. Both partiеs and their respective counsel have advanced arguments that border on the frivolous. Without making any legal determination as to the propriety of the abject refusal of the ZBA to permit the petitioner to even voice his objections at the purported hearing held on March 16, 1998, at which the conditions at issue herein