NY Appellate Court Overturns Decision by ZBA Finding Issuance of a Building Permit for Garage was not a Permissible Accessory Use under the Ordinance

The zoning board approved the issuance of a building permit for the construction of a large garage on a lot located in an R-2 residential zone. The ZBA determined that the garage was a permitted accessory use and did not require an area variance. The appellate court disagreed, finding that the decision of the board was not rational since both of the board’s findings (that the proposed garage constituted a permissible accessory and the determination that no area variances were required) were arbitrary and capricious. The ordinance at issue defines an “accessory” building as a “subordinate building . . . the use of which is customarily incidental to that of a main building on the same lot.” The garage for which the permit had been granted was proposed to be twice the size of the house on that same lot and there was insufficient evidence on the record to support a finding that a garage of that size would be “customarily incidental.” Also, according to the subject zoning ordinance, an accessory building cannot measure over 15 feet in height, if it is however, it must be located 25 feet from the main building on that site. The plans for the garage which were submitted showed the height of the garage as being over 15 feet and there was no evidence on the record to the contrary to support the zoning board’s decision.

Witkowich v. Zoning Board of Appeals of Town of Yorktown, 2011 WL 1902196 (2 Dept. 05/17/2011)

The opinion can be accessed at:

http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2011/D31298.pdf