J&G SUCCESSFULLY DEFENDS ZBA IN ULSTER COUNTY SUPREME COURT

Full Case (PDF)

In a decision and order dated March 26, 2013, Judge Mott of the Supreme Court of Ulster County upheld the determination of the Town of Shandaken Zoning Board of Appeals (ZBA) granting area variances to the Phoenicia Library so that the library could rebuild and expand its facility after a fire partially destroyed the building. Two neighboring property owners challenged the determination arguing (1) that the ZBA failed to address neighborhood impacts, (2) should have denied the variances because the hardship was self-created, (3) required a super-majority to approve the variances because of recommendations made by the Ulster County Planning Board, and (4) did not grant a general variance to expand the non-conforming building. The neighbor-petitioners also sought an injunction to prohibit the Planning Board from continuing its review of the site plan application.

Jacobowitz and Gubits attorneys Larry Wolinsky successfully defended the ZBA determination on every point. The court found that each and every alleged impact had been thoroughly examined by the ZBA and its impact on the neighborhood weighed against the benefit to the library. Moreover, as pointed out in the Town’s papers, the petitioners’ claim that the library requested a zero lot-line set back was, in fact, a misrepresentation of the library’s application; no such variance had been requested or granted. Nor was the hardship “self-created” where the increase in footprint was required under federal law to accommodate disabled patrons and comply with the American Library Association square footage per patron standards. Petitioners’ allegation that a super majority vote was required was also incorrect where the County merely made “recommendations” which, as the court noted, were addressed by the ZBA. In answer to the claim that a general variance was needed, the court found that the specific granting of area variances explicitly permitted expansion of the library.

Finally, the court did not grant the requested injunction against the Planning Board. A municipality cannot be enjoined from doing its statutory duty pursuant to CPLR 6313(a).