Agenda - Planning Commission - 11/02/1998

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Z.B. October 25, 1998 . Page 7 ming pool, or septic system and put the new bedroom on the house in the area vacated by any one of these items. The Cervenkas appealed to court, arguing the board should have issued the variance because it was the only reasonable alternative. According to the Cervenkas, the board's decision subjected them to unnecessary hardship. DECISION: Affirmed. The Cervenkas weren't entitled to a variance. As the board found, the Cervenkas didn't need a variance to add a bedroom to their house. They could relocate their driveway, swimming pool, or septic system. Although any of these solutions would be expensive, each was a practical, straightforward solution to the Cervenkas' problem. The additional cost of relocat- ing a driveway, pool, or septic system didn't change this, because the unneces- sary hardship needed for a variance couldn't be based on economic factors. see also: State v. Kenosha County Board of Adjustment, 577N. W. 2d 813 (1998). see also: Snyder v. Waukesha County Zoning Board, 247N. W. 2d 98 (1976). Code -- Can p°ol owners use neighbors' fence to enclose pool? Citation: Warshaw v. Town of Huntington, Supreme Court of New York, Appellate Div., 2nd Dept., No. 97-07890 (1998) The Warshaws lived in the town of Huntington, N.Y. The town issued their neighbors a permit to build an inground pool. The town code stated all pools had to be completely enclosed by a fence and that ail openings into the pool area had to have a gate. The fence had to be at least 4-feet high and couldn't have openings greater than 6 inches at any point. The neighbors built a fence around three sides of their pool and, without permission, used part of the Warshaws' fence to complete the enclosure. The Warshaws' fence was entirely on the Warshaws' property. The Warshaws complained to the town, claiming the town code required the neighbors to build their own fence on their own property. The town con- cluded the code simply required a fence and that ownership of the fence was irrelevant. The Warshaws sued the town. They asked the court to find that the town code required a pool owner to completely enclose a pool with a fence built by the owner on the owner's property. The court awarded the town judgment, and the Warshaws' appealed. DECISION: Reversed. The town's interpretation of the code was unreasonable as applied to the Warshaws' situation. The code didn't allow the neighbors to use a portion of the Warshaws' fence to enclose their pool. The code imposed requirements that had to be satisfied by pool owners. By allowing the neighbors to use a portion of the Warshaws' fence, the town im- properly shifted part of the responsibility for pool ownership on the Warshaws. This exposed the Warshaws to liability in the event that they removed the fence or it fell into disrepair.