Agenda - Planning Commission - 01/02/2003

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32 Page 8 -- November 25, 2002 DECISION: Remanded for reconsideration in light of the mended'standards. The. case was sent: backl to the board to decide again based upon the'new standards. .. -The court noted the new standard elim/nated.the:requirement an aPPlicant show that there was no other reasonable alternative to enjoy a 1-egaltypermitted beneficial use of one's property.. The board applied the proper .test in it's. denial of'Zarrellats application.. However, this test has been since'struck from the statute. The boar. d had to now 'apply the new, less stringent,.standaxck ~ ' Citation: Zarrella v. Zonini.,Board' of Review of the Town of New Shoreham, Supreme CoUrt of Rhode Island, Washing. ton, No. 200.t-01-85 (2002). see alsO: 'Bernuth v.'Zoning Board Of Review, 770 A.2d 396 (200-1.). see also: V~ti v. Zoning Board.of Review' 166 A.2d 211. (1960). .Variance m Owners Seek occupancy permit for garage Citizens object due to violation of setback variance' NEW YORK..(10/17/02) ,---'The Kanes built a garage on. their property and sought an occupancy permit. Citizens'in. the area objected't° the issuance of'the permit, complaining the structure ViOlated a variance granted concerning the 50-foot rear-yard setback requirement of the code. The citizens appealed for a heating with the zoning board of appeals. The notice was not filed on the form required by the land use code, and the petition was not accompanied by the required fee. The board refused to hear the appeal, and the citizens appealed to court. The board asked the court to dismiss the citizen's lawsuit. Prior to the time of trial, the citiZens filed an.amended notice of appeal onthe correct form with the right'fee. The board accepted the amended notice, but by'that time, the lower court had' already decided the action, was moot. The citizens appealed; claiming the amended notice-was -timely filed and the late payment of the appeal fee did not require dismissal. DECISION: Reversed and remanded. The matter was not moot, and the amended notice was timely, Therefore, the case should not have-been dismissed. The amended notice of appeal related back to the date of the original filing of the notice of appeal, which was flied on. time, within 30.. days of the date of the certificate of occupancy. Thus, t, he doctrine of moomess did not apply. ' Although the citizens-failed to use. the proper form for-the, notice of appeal, they substantially complied with.the procedural requirements of the code, and no prejudiCe was inflicted upon the board. Citation: Milnarik v. Rogers, Supreme Court. of New York; App. Div., 3rd Dept., No: 89337 (2002). see also: Matter of Nighway Displays. v, Zoning Board of Appeals.of Town of Wappinger, 32 A.D.2d 668. see also.'. People v. [dema, 518 N. ES. 2d 292.