666 N.Y.S.2d 685 | N.Y. App. Div. | 1997
—In a proceeding pursuant to CPLR article 78 to review (1) a determination of the Zoning Board of Appeals of the Town of Mamaroneck, dated March 29, 1996, revoking a building permit, and holding, inter alia, that a side-yard variance previously granted in 1979 was “granted on the condition that construction proceed in strict conformance with plans filed with the 1979 application”, and (2) so much of a determination of the Zoning Board of Appeals of the Town of Mamaroneck, dated April 17, 1996, as denied the petitioners’ application for a side-yard variance, the appeals are from a judgment of the Supreme Court, Westchester County (Rosato, J.), entered September 27, 1996, which vacated and annulled so much of the determination of the Zoning Board of Appeals of the Town of Mamaroneck, dated April 17,1996, as denied the petitioners’ application for a side-yard variance, granted the subject variance to the petitioners, and directed the issuance of a building permit and certificate of occupancy.
Ordered that the judgment is modified, on the law, by (1) deleting the provision thereof which directed the Zoning Board of Appeals of the Town of Mamaroneck to issue a side-yard variance, and substituting therefor a provision declaring that no side-yard variance is required, and (2) adding a provision thereto annulling the finding of the Zoning Board of Appeals of the Town of Mamaroneck in its determination dated March 29, 1996, that the 1979 variance was “granted on the condition that construction proceed in strict conformance with plans filed with the 1979 application”; as so modified, the judgment is affirmed, with costs payable to the respondents by the intervenors-appellants.
The petitioners’ house, which was constructed in the 1920’s, prior to the enactment of the current zoning ordinance, does not conform with the requirements in the current zoning
In 1995 the petitioners applied for a building permit to replace the existing flat roof on the 1979 addition with a gabelled roof, which did not exceed the height permitted by the zoning ordinance. The application was granted, and construction proceeded nearly to completion, at which time two of the petitioners’ neighbors raised objections to the granting of the building permit. After a hearing, and after consulting the minutes of the proceedings leading to the granting of the 1979 variance, the ZBA, in its determination dated March 29, 1996, revoked the building permit. In reaching that determination, the ZBA held, inter alia, that (1) the 1979 construction “was not nonconforming, because the 1979 variance permitted it”, thus “any future change to the [addition] would * * * not constitute a change to a nonconforming use”, (2) the 1979 variance “states that the variance is granted on the condition that construction proceed in strict conformance with plans filed with the 1979 application”, and (3) a new survey prepared after the building inspector issued the building permit indicated that the 1979 construction encroached on the required front-yard setback, requiring a variance for the front yard.
The petitioners applied for front-yard and side-yard variances, and the ZBA, in its determination dated April 17, 1996, granted the variance for the front yard, but denied the variance for the side yards on the ground that “the detriment to the community exceeds the benefit to the applicant”. This proceeding pursuant to CPLR article 78 ensued.
The Supreme Court, in ruling in favor of the petitioners, noted that the petitioners raised a “plausible” argument that the “1995 changes to the roof were in conformity with the local Zoning Ordinance and therefore satisfied the requirements of the 1979 Variance”. However, the Supreme Court did not annul the determination of the ZBA that a side-yard variance was required. Rather, it ruled that the denial of the side-yard variance was improper because it was not supported by substantial evidence.
We conclude that a side-yard variance was not required for
Since the project in issue here was within the height limitations of the zoning ordinance, did not deviate from or increase the building’s footprint, and did not encroach upon the required side yards established by the 1979 variance, once the ZBA granted the necessary front-yard variance, it should have authorized issuance of a building permit and a certificate of occupancy. Ritter, J. P., Sullivan, Goldstein and Lerner, JJ., concur.