Matter of Gjerlow v. Graap

• Court: New York Supreme Court — Appellate Division
• Citation: Matter of Gjerlow v. Graap, 43 AD3d 1165, 842 N.Y.S.2d 580, 2007 NY Slip Op 6993 (N.Y. App. Div. 2007)
• Decision Date: 25 September 2007
• Docket Number: 2005-10660.
• Parties: In the Matter of NANCY GJERLOW et al., Respondents-Appellants, v. ROBERT J. GRAAP, Respondent, and LEONARDO LEBRUN et al., Appellants-Respondents. (Proceeding No. 1.) In the Matter of LEONARDO LEBRUN et al., Appellants-Respondents, v. ZONING BOARD OF APPEALS OF TOWN OF BEDFORD et al., Respondents. (Proceeding No. 2.)

43 A.D.3d 1165

842 N.Y.S.2d 580

2007 NY Slip Op 06993

In the Matter of NANCY GJERLOW et al., Respondents-Appellants, v. ROBERT J. GRAAP, Respondent, and LEONARDO LEBRUN et al., Appellants-Respondents. (Proceeding No. 1.)

In the Matter of LEONARDO LEBRUN et al., Appellants-Respondents, v. ZONING BOARD OF APPEALS OF TOWN OF BEDFORD et al., Respondents. (Proceeding No. 2.)

2005-10660.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided September 25, 2007.

In related proceedings, which were joined for disposition, pursuant to CPLR article 78, inter alia, to review a determination of the Zoning Board of Appeals of the Town of Bedford dated February 9, 2005, which, after a hearing, in effect, vacated a determination of Robert J. Graap, in his capacity as Code Enforcement Officer of the Town of Bedford, dated June 16, 2004, directing Nancy Gjerlow and Robert Gjerlow to apply for a building permit within 90 days to construct a main dwelling on certain real property owned by them, and instead determined that Nancy Gjerlow and Robert Gjerlow shall be permitted to continue to reside on the real property in an accessory dwelling without applying for a building permit to construct a main dwelling, and that any successor owner shall have a period of two years to apply for and receive a building permit to construct a main dwelling and thereafter diligently pursue such construction to completion, Leonardo LeBrun and Lara LeBrun appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Westchester County (Lefkowitz, J.), dated October 24, 2005, as, upon so much of an order of the same court dated September 30, 2005, as denied the petition in proceeding No. 2, dismissed that proceeding, and Nancy Gjerlow and Robert Gjerlow cross-appeal from so much of the same judgment as, upon so much of the order as denied the petition in proceeding No. 1, dismissed that proceeding.

Ordered that the judgment is modified, on the law, by deleting the provision thereof denying those branches of the petition of Leonardo LeBrun and Lara LeBrun in proceeding No. 2 which were to annul so much of the determination dated February 9, 2005 as determined that Nancy Gjerlow and Robert Gjerlow shall be permitted to continue to reside on the real property in an accessory dwelling without applying for a building permit to construct a main dwelling and that any successor owner shall have a period of two years to apply for and receive a building permit to construct a main dwelling and thereafter diligently pursue such construction to completion, and dismissing that proceeding, and substituting therefor a provision granting those branches of the petition of Leonardo LeBrun and Lara LeBrun in proceeding No. 2 and annulling those portions of the determination dated February 9, 2005; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, the order dated September 30, 2005 is modified accordingly, and the matter is remitted to the Zoning Board of Appeals of the Town of Bedford for further proceedings consistent herewith.

In 1980 Nancy Gjerlow and Robert Gjerlow purchased a 17.756-acre horse farm located in an area within the Town of Bedford that is zoned for single-family residences on minimum four-acre lots. The zoning ordinance defines a "cottage" as a "dwelling unit within an accessory building which is incidental and subordinate to a principal one-family residence ... where either unit is occupied by the owner of the premises" (Town of Bedford Code § 125-3).

The Gjerlows applied for a variance permitting them to build a "cottage," which they would live in prior to and while building a main residence, and the Zoning Board of Appeals of the Town of Bedford (hereinafter the ZBA) adopted a resolution granting them a variance "to permit construction of a 1711 square foot caretaker's cottage prior to construction of the main building" (hereinafter the 1982 variance). The 1982 variance did not set any period of time within which the property owners were required to construct the main building. The Gjerlows built the "cottage" and have resided there to the present, without ever having built a main residence.

In 2003 Leonardo LeBrun and Lara LeBrun acquired the 20-acre property adjoining the Gjerlow property, and thereafter complained to the Building Inspector of the Town of Bedford that the Gjerlows had not complied with the 1982 variance and were illegally continuing to live in the cottage located within 17 feet of their property. Robert J. Graap, in his capacity as Code Enforcement Officer of the Town of Bedford, determined that...