Agenda - Planning Commission - 09/07/1999

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Page 8 -- July 10, i999 Z.B. The city denied Burdine's rezoning request in part because he already had ap- proval for a residential subdivision and his property was virtually surrounded by residential subdivisions. The city's decision didn't amount to a taking. Under Mississippi law, whether a zoning decision amounted to a confiscatory taking was "intertwined" with whether the decision was arbitrary and unreasonable or whether it was "fairly debatable." Because the city council's decision was supported by the evidence and therefore "fairly debatable," no taking occurred. Burdine v. City of Greenville, Court of Appeals of Mississippi, No. 98-CC- 00664-COA (]999). Setback-- Neighbors claim basketball hoop violates setback requirements NEW YORK (5/20/99) -- The Greens lived in the village of Johnson City. They built a basketball backboard and hoop near the edge of their property. According to neighbors, the backboard's proximity to the Greens' property line created excessive noise. The neighEors complained to the village, claim- ing the backboard violated the village zoning ordinance because it was within the 5-foot setback area. The neighbors also claimed the backboard violated the zoning ordinance because the ordinance didn't list backboards as a permitted use. The zoning board rejected the neighbors' complaint. It said the Greens didn't violate the zoning ordinance because the setback requirement applied only to buildings, and the backboard wasn't a building as defined by the zoning ordinance. The board aisc found the backboard was allowed as an accessory use. The neighbors appealed to c0uri. The court dismissed their appeal, and the neighbors appealed again. DECISION: Affirmed. The board's decision couldn't be overturned because it was rational and supported by substantial evidence. The board found the Greens' placement of the backboard 3 feet from the property line didn't violate the 5-foot sideyard setback because the setback applied only to buildings. The backboard wasn't a "building" as defined by the zoning ordinance, so the setback didn't apply. Though the zoning ordinance didn't specifically list basketball backboards as a permitted use, it wasn't unreasonable for the zoning board to conclude the backboard was allowed as an accessory use. Accessory uses were those that were "customarily incidental and subordinate to the principal use," and the large number of backboards on private property showed backboards were in- deed a customary use. Dy~o ~: Village of ffohnson City, Supreme Court of New York, Appellate Div., 3rd Dept., No. 8J030 (1999). see also: Sasso v. Osgood, 657 N.E. 2d 254.