Agenda - Planning Commission - 02/02/1999

Home

Z.B. January 10, 1999 Page 3 It:> city sewage charges. State law gave the city the right to sue for fines for any zoning violation. · ., : ... There was more than enough .evidence showing the.landlord.violated the occupancy ordinance. Although one lease listed only. three tenantsi' 'the. land- lord received, accepted, endorsed, and deposited rent checks from four unr, e,- lated tenants. He knew.about the city's impending investigations and' appar- ently told the tenants to make it look as though only three people lived there. see also: Carpenter V. .Whitley County Plan .C. ommission~ 36 7 N. E.2d 115~> (1977).. Variance -- Owners are bounced from one town board to another and back again ' Citation: WitzI v. Zoning Board of Appeals of. the Town of. Berne, Supreme Court of New York, Appellate Div., 3rd Dept., No. 82408 (1998) ' The Witzls owned a 3.5-acre tot in Berne, N.Y. They also owned 'an adjoin- ing 9-acre lot. Both lots were zoned residential agricultural, which required a minimum of 5 acres tobuild.a house. In 1989, the Witzls applied to the town zoning board for an area.variance allowing them to build a house on their smaller lot. The board denied their request, saying it would be more appr6priate for them to seek subdivision approval to combine part of their lakger parcel with the'smaller pamet. .a .; suggested, the Witzts applied to the town planning board for permission to add 1.5' acres from their larger lot to the smaller lot so they could build a house. The planning board denied their request. The board's minutes showed that a board member recommended the Witzls apply for a variance for the 3.5-acre parcel to avoid an unusual lot configuration. The town attorney made the same suggestion. The board noted it denied the subdivision application to allow the Witzls apply for a variance. The. Witzls, who by this time had lost-the larger parcel through foreclosure, reappT, ied for a variance. Ignoring their efforts to get subdivision approval after the denial of their first variance request, one zoning board member said the Witzls had owned two adjoining parcels that could have 'been: ombined to create two buildable lots. He said they "did not follow through with whai was suggested in 1989." The town attorney, who was at the hearing, didn't.correct this misimpression, nor did he mention that the Witzls were before the board for a second time partly at his suggestion. The board denied the Witzls' variance request. · The Witzls sued the board. They asked the court to annul the board's decision and to order the board to grant them a variance. The court concluded the board's decision was arbitrary. It ordered the board to grant the Witzls a variance allowing them to build a house on their property. The board appealed. DECISION: Affirmed. The Witzls were entitled to the variance. The benefit to the Witzls clearly