Agenda - Planning Commission - 08/06/1996

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~Fage ~5 July 13, 1996 Herrick asked a court to review the board's decision, and the court denied her appeal. Herrick appealed again. DECISION: Affirmed. The lower court properly denied Herrick's appeal. Herrick did not prove the board would have had to reach a different decision based on the evidence. The board's record contained no evidence from which a court could find the decision was .incorrect. Because Herrick did not ask the board to make find- ings, the courts had to assume the board found in the town's favor on all the factual issues that would support the decision. Woods v. Bath Industrial Sales Inc., 549 A.2d 1129 (1988). Boivin v. Town of Sanford~ 588 A.2d 1297 (.~991). Board Can board rely on the very decision it's reviewing? Barreca v. DeSantis, 641 N.Y.S. 2d 953 (New York) 1996 The Christous owned property in the village of Solvay, N.Y. They built a retaining wall along the property's rear and side boundaries. The rear wall was higher than six feet, in violation of the village's .zoning ordinance. One of the Christous' neighbors complained about the wall to the village's code-enforcement officer. The officer cited the Christous for the rear wall's height. The Christous didn't do anything about it at first, and got fined. They applied for a variance, but the request was denied. After they rebuilt the rear wall, the code-enforcement officer found it complied with the ordinance. Several neighbors appealed to the village's Zoning Board of Appeals. They asked the board to not only review the officer's decision, but also decide whether the side wall complied with the ordinance. Apparen!Iy, the only evidence they submitted at the hearing had to do with the side wall. The board denied the neighbors' appeal. It relied on the officer's decision, rather than deciding for itself whether the rear wall complied. The neighbors asked a court to review the board's decision,, and also to find that the side wall was in violation. The Christous, the board and village officials asked the court to dismiss the case, which the court did. It said the neighbors failed to exhaust administrative remedies regarding the side wall, and did not give any evidence regarding the rear wall. The neighbors appealed. DECISION: Affirmed, but modified. The lower court properly dismissed the part of the case regarding the side wall, but should not have dismissed the part about the rear wall. The boarct improperly failed to make its own determination about whether the rear wall complied with the ordinance, so the case was sent back to the board to do so. It should have made its own finding about the wall's height instead of relying on the code-enforcement officer's decision. Matter of Maloy Inc. v. Zooming Board of Ajppeals, 564 N.Y.$.2d 544. Matter of Fischer u Markowitz, 560 N.Y.S. 2d 496.