Martens v. Zoning Board of Appeals

195 A.D.2d 974, 600 N.Y.S.2d 600, 1993 N.Y. App. Div. LEXIS 7752

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 16, 1993
• Status: Published

Opinion

Judgment unanimously affirmed without costs. Memorandum: Petitioners, owners of property adjoining intervenor Patrick Mullahy’s lot on South Street in the Village of Marcellus, challenge respondents’ issuance of a building permit for the addition of a second story to the nonconforming structure on Mullahy’s property. Article XIII of the Village Zoning Ordinance provides that no "nonconforming structure may be enlarged or altered in any way which increases its nonconformity.” Because the addition of a second story would not enlarge the "footprint” or outline of the structure, respondents determined that the proposed construction would not increase the structure’s nonconformity to side setback requirements.

Respondents are entrusted with a reasonable measure of discretion in the interpretation of their own zoning ordinance (see, Matter of Fuhst v Foley, 45 NY2d 441, 445; Matter of Bockis v Kayser, 112 AD2d 222, 223). We agree with Supreme Court that respondents reasonably determined that the addition of a second story would not violate the ordinance’s proscription against enlarging or altering a nonconforming structure in any way that increases its nonconformity.

We reject petitioners’ contention that the building permit was not properly approved by the Village Board of Trustees. Further, the Zoning Board of Appeals correctly refused to hear petitioners’ appeal on the ground that it lacks authority to review a determination of the Village Board of Trustees (see, Moriarty v Planning Bd., 119 AD2d 188, 196; Matter of Katz v Board of Appeals, 21 AD2d 693). (Appeal from Judgment of Supreme Court, Onondaga County, Hayes, J.—Article 78.) Present—Callahan, J. P., Green, Pine, Fallon and Davis, JJ.