In the Matter of Rita Gentile v. Vill. of Tuckahoe Zoning Bd. of Appeals
| Citation | 929 N.Y.S.2d 167,87 A.D.3d 695,2011 N.Y. Slip Op. 06349 |
| Court | New York Supreme Court — Appellate Division |
| Decision Date | 23 August 2011 |
| Parties | In the Matter of Rita GENTILE, et al., appellants,v.VILLAGE OF TUCKAHOE ZONING BOARD OF APPEALS, et al., respondents. |
87 A.D.3d 695
929 N.Y.S.2d 167
2011 N.Y. Slip Op. 06349
In the Matter of Rita GENTILE, et al., appellants,
v.
VILLAGE OF TUCKAHOE ZONING BOARD OF APPEALS, et al., respondents.
Supreme Court, Appellate Division, Second Department, New York.
Aug. 23, 2011.
[929 N.Y.S.2d 168]
Annette G. Hasapidis, South Salem, N.Y., for appellants.John D. Cavallaro, Village Attorney, Tarrytown, N.Y., for respondent Village of Tuckahoe Zoning Board of Appeals.McCullough, Goldberger & Staudt, LLP, White Plains, N.Y. (Ruth F–L. Post of counsel), for respondent Margaret Yu.REINALDO E. RIVERA, J.P., PETER B. SKELOS, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.[87 A.D.3d 695] In a proceeding pursuant to CPLR article 78 to review so much of a determination of the Village of Tuckahoe Zoning Board of Appeals dated January 14, 2009, as, upon granting the petitioners' application for an area variance, after a hearing, imposed the condition that an existing exterior stairway be set back at least two feet from the westerly boundary of the subject premises, the petitioners appeal from a judgment of the Supreme Court, Westchester County (Wetzel, J.), entered December 22, 2009, which denied the petition and dismissed the proceeding.
ORDERED that the judgment is reversed, on the law, without costs or disbursements, the petition is granted, and so much of the determination of the Village of Tuckahoe Zoning Board of Appeals as imposed the condition is annulled.
The petitioners are the owners of residential premises located in the Village of
[929 N.Y.S.2d 169]
Tuckahoe. In 2001 they applied for a permit, inter alia, to reconstruct the existing retaining walls in their backyard. During the process of reconstructing the retaining walls, the petitioners also reconstructed a curved, existing exterior stairway in the backyard. In 2006 it was discovered that the stairway was in violation of the Village of Tuckahoe Zoning Code, which required that “no side yard shall be less than four feet in width” (Village of Tuckahoe Zoning Code § 2–4.4[f][2] ).The petitioners filed an application with the Village of Tuckahoe Zoning Board of Appeals (hereinafter the ZBA) for an area variance to continue the use of the stairs. After a hearing, the ZBA, in a determination dated January 14, 2009, granted the area variance, subject to the condition that the existing stairway be set back at least two feet from the westerly boundary of the premises. The petitioners then commenced this proceeding pursuant to...
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