O'Keefe v. Donovan

• Decision Date: 09 December 1993
• Citation: 199 A.D.2d 681,605 N.Y.S.2d 150
• Parties: In the Matter of Lawrence A. O'KEEFE et al., Respondents, v. Jean DONOVAN, as Chairperson of the Zoning Board of Appeals of the Town of Colonie, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 150

605 N.Y.S.2d 150

199 A.D.2d 681

In the Matter of Lawrence A. O'KEEFE et al., Respondents, v. Jean DONOVAN, as Chairperson of the Zoning Board of Appeals of the Town of Colonie, et al., Appellants.

Supreme Court, Appellate Division Third Department.

Dec. 9, 1993.

Arnis Zilgme, Town Atty. (Jeffrey P. Mans, of counsel), Newtonville, for appellants.

Lynch & Lynch (Peter A. Lynch, of counsel), Albany, for respondents.

Before MERCURE, J.P., and CARDONA, WHITE, MAHONEY and CASEY, JJ.

MAHONEY, Justice.

Appeal from a judgment of the Supreme Court (Connor, J.), entered February 22, 1993 in Albany County, which granted petitioners' application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent Zoning Board of Appeals of the Town of Colonie granting an area variance.

John Elacqua and Marie Elacqua own a 42,325-square-foot lot on Dawn Drive in the Town of Colonie, Albany County, improved with a single-family home. In 1992, the Elacquas sought to subdivide the lot for purposes of permitting their adult daughter, Jamie, who suffers from lupus, to construct a home on the newly created vacant lot. Because the subdivision would lead to both lots having less than the 80-foot minimum required frontage (the lot with the Elacquas' house having 71 feet and the vacant lot having 62 feet) and the new house having less than the 55-foot minimum setback, a request was made for an area variance. Despite strong objections lodged by certain neighboring landowners at the public hearings, respondent Zoning Board of Appeals of the Town of Colonie (hereinafter respondent) granted the application finding that the deviation was minimal, it would not have any adverse effect or impact on the physical or environmental conditions in the neighborhood or upon the public safety, and was necessary because of Jamie's ill health. Thereafter, petitioners, all neighboring landowners, commenced this CPLR article 78 proceeding against, among others, respondent, arguing that the Elacquas failed to show practical difficulties. Supreme Court agreed and annulled respondent's determination. Respondent appeals.

Under familiar principles, in order to establish entitlement to an area variance the applicant must "demonstrate that 'strict compliance with the zoning ordinance will result in practical difficulties' " (Matter of Fuhst v. Foley, 45 N.Y.2d 441, 445, 410 N.Y.S.2d 56, 382 N.E.2d 756, quoting Conley v. Town of Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 309, 314, 386 N.Y.S.2d 681 353 N.E.2d 594), that is, that the applicant cannot, as a practical matter, use his or her property without coming into conflict with certain zoning ordinance restrictions (see, Matter of Fuhst v. Foley, supra ). Under Town Law § 267-b(3), the criteria to be applied by respondent in ruling on an area variance request are (1) whether the variance will result in an undesirable change in the character of the neighborhood or be...