| Matter of Voetsch v Craven |
| 2008 NY Slip Op 01362 [48 AD3d 585] |
| February 13, 2008 |
| Appellate Division, Second Department |
| In the Matter of John M. Voetsch et al., Appellants, v TeddCraven et al., Respondents. |
—[*1] Joseph L. Latwin, Deputy Village Attorney, Harrison, N.Y. (Jonathan D. Kraut of counsel),for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Boardof Appeals of the Town of Harrison dated November 3, 2005, which, after a hearing, denied thepetitioners' application for an area variance to permit the erection of a four-foot high stockadefence and imposed a condition on the granting of four additional area variances regarding theconfiguration of a parking lot requiring the petitioners to erect a chain at the entrance to thedriveway of the parking lot to prevent overnight parking, the petitioners appeal from a judgmentof the Supreme Court, Westchester County (Zambelli, J.), entered August 4, 2006, which deniedthe petition and dismissed the proceeding.
Ordered that the judgment is modified, on the law, by deleting the provision thereof denyingthat branch of the petition which was to annul the condition imposed on the granting of the fourarea variances requiring the petitioners to erect a chain at the entrance to the driveway of theparking lot to prevent overnight parking and substituting therefor a provision granting that branchof the petition and annulling that condition; as so modified, the judgment is affirmed, withoutcosts or disbursements.
The petitioners purchased a building which the grantor had used for professional officesdespite its location in a residential district in the Town of Harrison. The petitioners, establishinga law office and real estate business in the building, paved and expanded the existing parking lotand installed a stockade fence on the two property lines shared with the residence. In 1995 theproperty was rezoned as a professional business district, and the Town required the petitioners toobtain a building permit for the parking lot. In 2003 the Town building inspector notified thepetitioners that [*2]the 1995 permit had been issued in errorbecause the petitioners had not complied with Town ordinances applicable to property in aprofessional business district.
The petitioners applied to the respondent Zoning Board of Appeals (hereinafter the ZoningBoard) for area variances. Following a public hearing, the Zoning Board denied the variance toallow a four-foot high stockade fence, and granted all remaining variances with respect to theparking lot on condition that the petitioners install a chain across the entrance to the driveway toprevent overnight parking at all times when the petitioners' offices were not open.
Conditions may be imposed upon the granting of an area variance to preserve the peace,comfort, enjoyment, health, or safety of the surrounding area (see Matter of Gomez v ZoningBd. of Appeals of Town of Islip, 293 AD2d 610 [2002]; Matter of Baker v Brownlie,270 AD2d 484, 485 [2000]). "A zoning board may, where appropriate, impose 'reasonableconditions and restrictions as are directly related to and incidental to the proposed use of theproperty,' and aimed at minimizing the adverse impact to an area that might result from the grantof a variance or a special permit" (Matter of St. Onge v Donovan, 71 NY2d 507, 515-516[1988], quoting Matter of Pearson v Shoemaker, 25 Misc 2d 591, 592 [1960]; see Matter of Martin v Brookhaven ZoningBd. of Appeals, 34 AD3d 811, 812 [2006]). However, if a zoning board imposesconditions that are unreasonable or improper, those conditions may be annulled (see Matter ofMartin v Brookhaven Zoning Bd. of Appeals, 34 AD3d at 812; Matter of Baker vBrownlie, 270 AD2d at 485).
Here, although the condition requiring the petitioners to prohibit overnight parking had arational basis in that it was directly related and incidental to the petitioners' use and minimizedany adverse impact on the neighboring property resulting from the granting of the parking lotvariances (see Matter of Conroy v Townof Woodbury Zoning Bd. of Appeals, 21 AD3d 957, 958 [2005]; Town Law §267-b [4]), there was no such rational basis for the condition requiring that the parking lot'sentrance be chained to prevent overnight parking.
Furthermore, the denial of the petitioners' application for an area variance with respect to theheight of the stockade fence was not arbitrary or capricious. The Zoning Board properly appliedTown Law § 267-b (3) (b) and balanced competing concerns to reach its determination (see Matter of Pecoraro v Board of Appealsof Town of Hempstead, 2 NY3d 608, 612-613 [2004]). Spolzino, J.P., Dillon,Angiolillo and Dickerson, JJ., concur.