Appellate Court Has No Appetite for Outdoor Kitchen and Affirms Zoning Board Denial of Area Variance

In the matter of Kramer v. the Zoning Board of Appeals of the Town of Southampton, 131 A.D.3d 1170 (2nd Dept. 2015), the Court upheld the Zoning Board’s denial for an area variance in connection with an outdoor kitchen.

The petitioners purchased the subject property in the Town of Southampton in 2009. Petitioners built a house, pool, deck, and trellis in the front yard pursuant to a variance in 2011. Petitioners also built an accessory structure under the trellis consisting of, among other things, a barbecue, sink, cabinets, countertop and refrigerator. In 2012, Petitioners’ application for a building permit was denied on the ground that the accessory structure, which served as a kitchen, was not permitted in the front yard.

Petitioners applied to the Zoning Board of Appeals of the Town of Southampton (ZBA) for setback and area variances for the accessory structure. However, the ZBA denied the application. Petitioners then a proceeding pursuant to CPLR Article 78 to review the ZBA’s determination.

The Supreme Court determined that the ZBA’s decision lacked a rational basis and was arbitrary and capricious, granted the petition, and remitted the matter to the ZBA to grant the requested variances. The Appellate Division reversed, finding that the ZBA “properly applied the required balancing test and considered the relevant statutory factors. Contrary to the conclusion reached by the Supreme Court, the ZBA’s determination had a rational basis and was not arbitrary or capricious.”

The evidence in the record supported the ZBA’s findings that granting the requested variances would produce an undesirable change in the character of the neighborhood, that the variances were substantial, that the Petitioners could use a portable unit as a feasible alternative, and that any hardship was self-created (see Town Law § 267-b [3] [b]). The Court further held that the three prior ZBA determinations that Petitioner submitted in support of its application did not constitute precedent from which the ZBA was required to explain a departure because Petitioners failed to establish that those cases were factually similar to the case at bar.

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