Naumann v. Zoning Bd. of Appeals of Town of Carmel
| Decision Date | 21 May 1990 |
| Parties | In the Matter of Rolf H. NAUMANN, et al., Appellants, v. The ZONING BOARD OF APPEALS OF The TOWN OF CARMEL, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Rolf H. Naumann, Mahopac, pro se, and for other appellants.
Thomas J. Costello, Town Counsel, Carmel, for respondent.
Before THOMPSON, J.P., and RUBIN, ROSENBLATT and MILLER, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Town of Carmel, dated April 18, 1988, granting an application for an area variance, the petitioners appeal from a judgment of the Supreme Court, Putnam County (Dickinson, J.), dated September 1, 1988, which dismissed the proceeding.
ORDERED that the judgment is affirmed, with costs.
Wayne and Marsha L. Cellio applied for and were granted an area variance by the respondent Zoning Board of Appeals of the Town of Carmel (hereinafter the Board), to construct a private stable on their residential property. Under the zoning code the stable was a permitted conditional use, but the Cellios were unable to comply with certain setback requirements.
The petitioners Rolf H. Naumann, Joan Naumann, Hans J. Dierks, and Elfriede Dierks, who are adjacent property owners, opposed the variance application and commenced the instant CPLR article 78 proceeding against the Board to annul the grant of the variance. The petition was denied and the proceeding dismissed. This appeal followed.
The Board granted the variance after a hearing and a visit to the property. Its determination was not arbitrary, illegal, or an abuse of discretion, and it has a rational basis and is supported by substantial evidence in the record (see, Matter of Freese v. Levitan, 117 A.D.2d 805, 499 N.Y.S.2d 128). Moreover, even if a hardship is self-created, that fact does not necessarily prevent a Zoning Board from granting a variance in the proper exercise of its discretion (see, Conley v. Town of Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 309, 386 N.Y.S.2d 681, 353 N.E.2d 594); Matter of New York Inst. of Technology v. Tanen, 112 A.D.2d 164, 490 N.Y.S.2d 846; Matter of Fort Ridge Bldrs. v. Zoning Bd. of Appeals of Town of Smithtown, 64 A.D.2d 704, 407 N.Y.S.2d 541). That a hardship is self-created is merely one factor to be considered (Conley v. Town of Brookhaven Zoning Bd. of Appeals, supra; Matter of Freese v. Levitan, supra ).
We reject the...
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