Agenda - Planning Commission - 05/04/1999

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, Z.B. March 25, 1999 -- Page 7 feet of frontage. Ballard's property contained only 2.1 acres and had only 360 feet of frontage. Ballard applied to the zoning board for a variance. Only three of the five board members voted on Ballard's request; one in favor, one against, and one abstention. The board held a second vote at a later hearing and granted Ballard a variance. The town planning board then issued Ballard a special use permit allowing him to build the storage units. A group of neighbors sued the planning board, seeking to annul Ballard's variance and special use permit. They claimed the zoning board's vote grant- ing the variance was improper because it was the Second vote on the matter without the benefit of additional evidence or another hearing. The town zoning ordinance required that a majority of the board agree for a board action to be valid. The planning board claimed Ballard didn't need a variance because his lot was covered by the town zoning ordinance's "single and separate ownership" provision. Under the ordinance, any undersized lots recorded before the town adopted its zoning ordinance were deemed confo~:ming, and Ballard had pur- chased his lot eight years before the town adopted its zoning ordinance. The court affirmed the planning board's issuance 'of the special permit. According to the court, whether the zoning board properly iSsued thevariance was irrelevant because 'Ballard's lot was "grandfathered" and didn't need a variance. The court said even if Ballard did need a variance to be entitled to a special permit, the zoning board properly granted the variance. The court found the zoning board's first vote didn't result in a denial, as the neighbors argued, because the board needed a majority vote to take any action either for or against the variance. The court said the board's first vote was a nonaction that required the board to hold a second vote. The neighbors appealed. DECISION: Affirmed. The planning board properly issued Ballard a special use permit allowing him to build the commercial storage buildings.. Ballard didn't need an area or frontage variance to develop his property commercially. Although his lot was undersized and had less than the minimum frontage required for a special use permit, the town's zoning ordinance grandfathered lots that were conforming before the ordinance was passed. Ballard's situation was exactly what the grandfather clause was designed to accomplish to protect long-term property owners from amendments that render useless their previously conforming property and Prevent restrictive zoning from resulting in a taking. Even if Ballard did need a variance, the zoning board's vote wasn't im- proper. According to the zoning ordinance, the zoning board needed a majority vote to take any action, so its first vote resulted in a nonaction, and the board had to take a second vote when the full board was present. see also: De Troia v. Schweitzer, 87 N. Y. 2d 338. 7/