Clowry v. Town of Pawling

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before ROSENBLATT
• Citation: Clowry v. Town of Pawling, 609 N.Y.S.2d 299, 202 A.D.2d 663 (N.Y. App. Div. 1994)
• Decision Date: 28 March 1994
• Parties: In the Matter of Marjorie CLOWRY, et al., Appellants, v. TOWN OF PAWLING, et al., Respondents.

Page 299

609 N.Y.S.2d 299

202 A.D.2d 663

In the Matter of Marjorie CLOWRY, et al., Appellants, v. TOWN OF PAWLING, et al., Respondents.

Supreme Court, Appellate Division Second Department.

March 28, 1994.

Daniel F. Leary, Carmel, for appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Richard S. Oelsner and Don Abraham, of counsel), for Town of Pawling respondents.

Pagones, Cross & Van Tuyl, P.C., Fishkill (Jennifer L. Van Tuyl, of counsel), for respondents Vijaya and Paula Kumar.

Before ROSENBLATT, J.P., and RITTER, PIZZUTO and ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Pawling, dated August 26, 1991, which, after a hearing, granted the application of the intervenors-respondents Vijaya and Paula Kumar, for an area variance, the petitioners appeal from a judgment of the Supreme Court, Dutchess County (Hillery, J.), entered March 13, 1992, which confirmed the determination and dismissed the proceeding.

ORDERED that the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

In 1988 the intervenors Vijaya and Paula Kumar purchased two adjacent lots in the Whaley Lake area of the Town of Pawling. One lot contained a single family residence and a dilapidated garage. Because of steeply sloping grades, the second lot was not improved with any structures.

In 1989 the Kumars applied for a permit to demolish the garage, which was in serious disrepair, and replace it with a new one. Neither the old nor the planned new garage met the front-yard setback requirements of the Town's zoning ordinance. Although the proposed structure required an area variance, the building inspector issued a permit without one. This action was consistent with the way similar types of applications were handled in the past in the Whaley Lake area. Following issuance of the permit, the Kumars spent approximately $55,000 constructing the new garage which was completed in October 1989.

In November 1989 the petitioners commenced a CPLR article 78 proceeding challenging issuance of the permit without the required variance, and seeking, inter alia, to have the new garage removed. The Kumars were granted leave to intervene in the CPLR article 78 proceeding. Finding that the petitioners had failed to exhaust their administrative remedies, the Supreme Court remitted the matter to the Zoning Board of Appeals to determine whether the permit had been issued properly and whether the garage was in compliance with the Town Code.

The petitioners thereafter applied to the Zoning Board of Appeals for a determination concerning the issuance of the subject permit, and construction of the garage without a variance. The Board also entertained an application by the Kumars for the issuance of an area variance in the event it was determined that one was necessary. The Board conducted a joint public hearing with respect to both applications. On August 26, 1991, the Board determined that the permit should not have been issued without a variance but concluded further that the Kumars had met their burden of establishing practical difficulties, and...