Agenda - Planning Commission - 12/05/1995

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I I I I I I I ! I I ! I November 1995 --Page 5 Dussau!t hired an engineer to help him flood proof the building, so it would comply with Federal Emergency Management Act standards. ' Dussauit applied for a variance again. At the board's hearing, nobody made a motion tO approve or deny the variance. The chairman ruled that because there was n~) motion, the variance was denied. Dussau!t asked a court to review the case. The court upheld the board's decision, fifiding it was supported by competent and substantial evidence. Dussau~t asked for a new trial. The court granted the request and heard additional eyidence about the case. After the hearing, the court found the board's decision was not supported by evidence. It reversed the decision, and returned the case to ~he board for further consideration. The boa~rd appealed, claiming its decision was supported by evidence. It also argued ~the court should not have considered further evidence, and improp- erly substitated its judgment for the board's. DECISION: Appeal dismissed and case returned to the lower court. The appeals court had no jurisdiction to hear the case, so it dismissed the appeal and returned the case to the lower court. The board's second decision was not really a "decision," and could not be appealed. The appeals court in- structed the lower court to send the case back to the board for approval or denial of the variance. When Dussault applied for a variance the second time, the board did not vote to approve or deny it. State law required boards of adjustment to vote on any action they took. There was also a letter from the city planner to Dussault that stated the board usually voted on petitions the same evening they were heard. The l~oard's chairman denied the application, not the board. Without a vote, the board did not act as an official body and there was no final decision that could be appealed to court. Dore & 44ssoc. Contr. v. Department of Labor, 810 S.W.2d 72 (1990). Plaster v~, Lebanon Special Rd. Dist. of Laclede County, 621 S. W.2d 560 (1981). Variance ~ Board Denies Variance for Homeowner's Pool and Deck Seumenicht v. Zoning Board of Appeals of the City of Rye, 629 N.Y.S. 2d 784 (New York) 1995 For morg than 30 years, Seumenicht lived in a single-family residence in the city of Rye, N.Y. Without getting a building permit, he built a deck and an abo've-groui~d pool in his yard. The deck and pool violated the Zonin~ ordinance's rear and sideYard setback requirements. Seumen~:cht applied to the Zoning Board of Appeals for an area variance. The board denied the variance, saying Seumenicht failed to prove he needed it to reasonably use his property. Seumen~ht appealed to court. The court annulled the board's decision and granted the variance with certain conditions. The board appealed. DECISION:iReversed. The low~r court improperly annulled the board's decision. Although the board couldhave found differently, its decision was not arbitrary.