Preview
FILED: CHAUTAUQUA COUNTY CLERK 05/31/2022 02:34 PM INDEX NO. EK12022000275
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 05/31/2022
STATE OF NEW YORK
SUPREME COURT ~ COUNTY OF CHAUTAUQUA
__ __ __ __ __ ____ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ -
DENNIS MORGAN
3705 Stubb Rd.,
Jamestown, New York 14701
Petitioner,
AFFIDAVIT IN REPLY
~ vs ~ Index No.: EK12022000275
TOWN OF ELLICOTT ZONING BOARD OF APPEALS
215 S. Work Street
Falconer, New York 14733
TOWN OF ELLICOTT
215 S. Work Street
Falconer, New York 14733
DAVID MICEK
3841 Stubb Rd.
Jamestown, New York 14701
Respondents.
__ __ __ __ __ __ __ __ __ __--____ __ __ __ __ __ __ __ __ __ __ __ __ -
Matthew B. Schutte, being duly sworn, deposes and says:
1. I am an attorney at law and of counsel to WRIGHT CALIMERI, PLLC, attorneys for
Petitioner, DENNIS MORGAN, and am familiar with the prior facts and circumstances of this
case.
2. This affidavit is made in reply to the Answers submitted by Respondents Town of
Ellicott Zoning Board of Appeals, Town of Ellicott (collectively "Town"), and David Micek,
requesting that the Court dismiss the Petition.
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FACTUAL SUMMARY
3. On March 17, 2020, Respondent Micek applied for and shortly thereafter received a
48' 70'
residential building permit seeking to build a x pole barn (3360 sq. ft.), with only 930
square feet of living pace. (Exhibit B annexed to the affidavit submitted by Respondent Town).
4. The Town of Ellicott Code Enforcement Officer granted the building permit, despite
the proposed construction not being in conformity with the Town of Ellicott Zoning Code.
5. The Town of Ellicott Zoning Code provides that construction of a garage in excess of
1000 square feet is not permissible in the Agricultural Residential Zoning District where
Respondent Micek's residence is located.
6. Petitioner raised an objection to that effect with the Town of Ellicott Code Enforcement
Officer and the Town Attorney.
7. The Town of Ellicott Code Enforcement Officer then issued a temporary certificate of
occupancy to Respondent Micek with conditions. The first condition was that Respondent Micek
Garage"
"Apply for an Area Variance for Larger Residential after completion of construction.
(Exhibit E annexed to the affidavit submitted by Respondent Town).
8. On February 17, 2022, Respondent Micek appeared before the ZBA seeking an area
variance allowing for a garage in excess of the allowable square footage. (Exhibit A annexed to
the affidavit submitted by Respondent Town).
9. Petitioner appeared at the ZBA hearing asking that the ZBA deny the application as the
requested variance would cause significant disruption to the use and enjoyment of his property.
10. By email dated February 22, 2022, the Town of Ellicott attorney confirmed that the
ZBA granted Respondent Micek an area variance allowing a garage of 1600 square feet. The
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written decision granting the variance unconditionally was issued on March 17, 2022. (Exhibit A
annexed to the affidavit submitted by Respondent Town).
ARGUMENT
I. Petitioner's challenge to issuance of the certificate of occupancy is not time barred.
11. Petitioner's challenge to the certificate of occupancy is timely. Under CPLR Section
217(1), the four-month statute of limitations does not begin to run until the governing body's
" binding"
detennination becomes final and upon the petitioner. (emphasis added).
12. As reflected in the temporary certificate of occupancy and in the papers submitted by
both Respondents, the temporary certificate of occupancy, issued in July of 2021 was conditioned
upon, among other things, the proposed structure passing all of the required inspections and
Respondent Micek applying for an area variance. (Exhibit E annexed to the affidavit submitted
by Respondent Town). Thus, on the face of the temporary certificate of occupancy, the final
certificate of occupancy did not issue until all of the conditions were met.
13. Respondent Micek applied for an area variance on or about February 1, 2022. (Exhibit
A annexed to the affidavit submitted by Respondent Town). Moreover, the proposed structure did
not pass the final electrical inspection until March 15, 2022, just two days before the instant
Petition was filed. (Exhibit D annexed to the affidavit submitted by Respondent Town).
14. Thus, even if the Court were to calculate the statute of limitations pursuant to CPLR
Section 217(a) based upon the date of Respondent Micek's application for an area variance, the
certificate of occupancy did not become final and binding upon Petitioner until February 1, 2022,
less than two months before the instant Petition was filed.
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Respondents'
15. Therefore, there is no merit to contention that Petitioner's challenge to
the certificate of occupancy is time-barred.
16. To the extent Petitioner had any administrative remedies to exhaust before filing the
instant Petition against the certificate of occupancy, he exhausted any such remedies when he
opposed the application for an area variance at the Zoning Board meeting on February 17, 2022.
Respondents'
As such, there is no merit to contention that Petitioner's challenge to the certificate
of occupancy is barred for failure to exhaust administrative remedies.
17. For the same reasons, there is no merit to Respondent Micek's contention that
Petitioner's challenge to the certificate of occupancy is barred by the doctrine of laches. As such,
the relief requested by Respondents must be denied.
H. The Town Code Enforcement Officer's issuance of the certificate of occupancy was
an abuse of discretion.
18. The issuance of the temporary certificate of occupancy was improper, because it was
issued pursuant to an invalid building permit.
19. The building permit should not have been granted, because the proposed structure was
significantly out of compliance with Town of Ellicott Zoning Code, which limits the size of a
feetl
garage to 1000 square The garage portion of the structure that was approved on March 17,
2020 was 2430 square feet, more than double what is permitted under the Zoning Code, after the
square footage devoted to living space is subtracted. (Exhibit B annexed to the affidavit submitted
by Respondent Town).
Respondent Micek's characterization of Petitioner's position as a contention that an area
variance is a prerequisite to issuance of a building pennit is somewhat misleading. Petitioner's
position is that a building permit should not be issued at all where the proposed structure is not
compliant with the applicable Zoning Ordinances, and the proper way for the applicant to go
about obtaining approval under those circumstances is by revising the plans for the proposed
structure or applying for an area variance.
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Respondents'
20. argument that the garage was not out of compliance with the applicable
Zoning Ordinance, and that the building permit was therefore properly issued, is without merit.
The Town of Ellicott Zoning Board of Appeals, which is responsible for interpreting the Zoning
Code, found that the proposed structure was not in conformance with the Zoning Code.
Specifically, the Findings of Fact state that the garage is "600 square feet larger than 1000 square
Law."
feet which is currently permitted by the Town of Ellicott Zoning In addition, the Minutes
from the Zoning Board meeting state several times that the attached garage is "larger than the 1000
allowed."
square feet (Exhibit A annexed to the affidavit submitted by Respondent Town).
21. It was only after Petitioner raised this issue with the Code Enforcement Officer that
the temporary certificate of occupancy was issued, allowing the garage portion of the proposed
structure to measure 1600 square feet, which was still out of compliance with the 1000 square foot
limit under the applicable Zoning Ordinance. (Exhibit E annexed to the affidavit submitted by
respondent Town).
22. As such, the relief requested by Respondents must be denied.
Appeals'
W. The Zoning Board of decision granting Respondent Micek's area variance
was arbitrary and capricious because the Zoning Board of Appeals did not
properly consider all of the factors it was required to consider under Section 146-5
of the Town of Ellicott Zoning Code and New York Town Law Section 267-b.
23. Under Section 146-5 of the Town of Ellicott Zoning Code, a variance shall only be
granted if not contrary to public interest and a literal interpretation of the provision will result in
unnecessary hardship to the applicant. The Findings of Fact and the Minutes from the Zoning
Board's decision are completely devoid of any explanation, or even facts from which one could
infer that literal interpretation of the Zoning Code limiting the square footage of the garage portion
of the structure to 1000 feet would have resulted in unnecessary hardship to Respondent Micek.
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Nor do Respondents point to any facts that were before the Zoning Board to support such a
conclusion.
24. Even if the Court were to infer that the Zoning Board did consider whether literal
interpretation of the Zoning Code would result in unnecessary hardship to Respondent Micek, any
such hardship would necessarily have been the result of the Zoning Board being forced to decide
the issue retroactively, due to the improper grant of a building permit and certificate of occupancy
for a structure that was not compliant with the applicable Zoning Ordinance.
25. If the building permit and certificate of occupancy had been properly withheld,
Respondent Micek would have had a choice between applying for an area variance or modifying
the plans for his proposed structure. Instead, he was permitted to proceed with the proposed
structure despite its noncompliance with the Zoning Code, and the issue was not presented to the
Zoning Board until construction of the structure was substantially complete.
Respondents'
26. There are no facts before the Court in the Zoning Board's decision,
submissions, or otherwise to support an inference that Respondent Micek would have suffered
undue hardship if he had ultimately been required to limit the size of the garage to 1000 square
feet before beginning construction.
27. Moreover, the Zoning Board did not properly consider all of the relevant factors they
were required to consider pursuant to New York Town Law Section 267-b in deciding whether to
grant the area variance. Specifically, New York Town law Section 267-b required the Zoning
Board to consider all of the following factors before granting the area variance:
(1) whether an undesirable change will be produced in the character of the neighborhood
or a detriment to nearby properties will be created by granting of the area variance,
(2) whether the benefit sought by the applicant can be achieved by some method, feasible
for the applicant to pursue, other than an area variance,
(3) whether the requested area variance is substantial,
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(4) whether the proposed variance will have an adverse effect or impact on the physical
or environmental conditions in the neighborhood or district, and
(5) whether the alleged difficulty was self-created.
While no one factor is dispositive, consideration of each factor is required. See Switzgable v. Town
of Brookhaven, 78 A.D.3d 842, 844 (2d Dept. 2010).
28. First, the Zoning Board failed to consider whether the benefit sought by Respondent
Micek could have been achieved by a feasible method other than an area variance. "An applicant
for an area variance bears the burden of establishing that strict compliance with the zoning law
difficulties.'"
will cause 'practical Gottlieb v. City of Rye, 139 A.D.2d 617, 618 (2d Dept. 1988)
(citing Fubst v. Foley, 45 N.y.2d 441, 443 (1978)) "In general, this requires a showing that 'as a
practical matter, [an applicant] cannot utilize his property or a structure located thereon without
ordinance.'"
coming into conflict with certain of the restrictions of the [zoning] Id. (citing Fubst,
45 N.Y.2d at 445). In the event an area variance is granted, the variance must "constitute the
hardship."
minimum adjustment needed to mitigate the alleged Id.
29. The Findings of Fact and the Minutes contain only a conclusory statement that the
variance."
benefit sought "could not be pursued without an area The decision is devoid of any
discussion of why the benefit would have been impossible to realize with a 1000 square foot garage
as opposed to a 1600 square foot garage. Indeed, nothing in the decision even articulates what the
desired benefit was. (Exhibit A annexed to the affidavit submitted by Respondent Town).
30. the Board failed to consider whether the alleged was self-
Secondly, Zoning difficulty
created. When "a property owner elects to convert conforming property into nonconforming
property, he cannot be heard to complain that the application of the zoning ordinance has resulted
in economic injury to him or that it has deprived him of the reasonable use and enjoyment of his
property."
Overhill Building Company v. Delaney, 28 N.Y.2d 449, 454-455 (1971). When
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"hardship is self-imposed, loss, if any, is not due to an application of the ordinance in question,
conduct."
but rather as a result of the property owner's Id. At 455. While this factor is not, by
"significant"
itself, dispositive, it has been considered a factor militating against approval of the
weight."
application, or a factor entitled to "great See Carlucci v. Town ofPhilipstown, 205 A.D.2d
688 (2d Dept. 1994); Kattke v. Village of Freeport, 200 A.D.2d 746 (2d Dept. 1994); D'Angelo v.
Hartman, 187 A.D.2d (4th Dept. 1992); Nammack v. Krucklin, 149 A.D.2d 596 (2d Dept. 1989);
Byron Associates v. Town of Mamaroneck, 142 A.D.2d 643 (2d Dept. 1988); Power House Home
Road Corp. v. Town of Hempstead, 171 A.D.2d 796 (2d Dept. 1991).
31. It is clear from the Zoning Board decision, and the Findings of Fact and Minutes
annexed thereto, that the Zoning Board gave very little weight to the issue of whether the need for
the variance was self-created. The only mentions of this factor in the Zoning Board's decision are
imposed,"
a conclusory statement in the Findings of Fact that "the hardship in question is not self
self-created."
and a conclusory statement in the Minutes that the "difficulty was not There is no
mention of any specific facts that led to that conclusion. (Exhibit A annexed to the affidavit
submitted by Respondent Town).
32. Most significantly, the Zoning Board's decision contains no mention of the fact that
Respondent Micek chose to bring construction to substantial completion before applying for an
area variance, despite having been aware of his requirement to do so seven months before his
application. (Exhibit E annexed to the affidavit submitted by Respondent Town).
33. Finally, the Zoning Board's decision does not meet the requirement imposed by New
necessary."
York Town Law Section 267-b, that it "grant the minimum variance that it shall deem
The Zoning Board has authority under New York Town Law Section 267-b to impose reasonable
conditions upon the grant of an area variance. There is no evidence in any part of the Zoning
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Board's decision that it even considered any potential conditions to attempt to mitigate the
concerns raised by Petitioner at the meeting. For example, there is no mention of the possibility
of requiring Respondent Micek to install a privacy fence, limiting the number of vehicles permitted
on the property, or placing restrictions on commercial use. Indeed, nothing in the decision states
or even suggests that its unconditional grant of the requested variance was the minimum variance
deemed necessary.
34. Because the Zoning Board plainly failed to consider several of the factors it was
required to consider under Section 146-5 of the Town of Ellicott Zoning Code and New York
Town Law Section 267-b, its decision to grant the area variance was an abuse of discretion.
Therefore, the relief requested by Respondents must be denied.
CONCLUSION
35. As outlined supra, it is respectfully submitted that the Town Code Enforcement
Officer's issuance of the certificate of occupancy was an abuse of discretion, because it improperly
pennitted construction of a building that was not in compliance with the Zoning Code. It is further
Appeals'
respectfully submitted that the Zoning Board of decision granting the area variance was
an abuse of discretion because it did not
Preview
FILED: CHAUTAUQUA COUNTY CLERK 05/31/2022 02:34 PM INDEX NO. EK12022000275 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 05/31/2022 STATE OF NEW YORK SUPREME COURT ~ COUNTY OF CHAUTAUQUA __ __ __ __ __ ____ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ - DENNIS MORGAN 3705 Stubb Rd., Jamestown, New York 14701 Petitioner, AFFIDAVIT IN REPLY ~ vs ~ Index No.: EK12022000275 TOWN OF ELLICOTT ZONING BOARD OF APPEALS 215 S. Work Street Falconer, New York 14733 TOWN OF ELLICOTT 215 S. Work Street Falconer, New York 14733 DAVID MICEK 3841 Stubb Rd. Jamestown, New York 14701 Respondents. __ __ __ __ __ __ __ __ __ __--____ __ __ __ __ __ __ __ __ __ __ __ __ - Matthew B. Schutte, being duly sworn, deposes and says: 1. I am an attorney at law and of counsel to WRIGHT CALIMERI, PLLC, attorneys for Petitioner, DENNIS MORGAN, and am familiar with the prior facts and circumstances of this case. 2. This affidavit is made in reply to the Answers submitted by Respondents Town of Ellicott Zoning Board of Appeals, Town of Ellicott (collectively "Town"), and David Micek, requesting that the Court dismiss the Petition. 1 of 10 FILED: CHAUTAUQUA COUNTY CLERK 05/31/2022 02:34 PM INDEX NO. EK12022000275 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 05/31/2022 FACTUAL SUMMARY 3. On March 17, 2020, Respondent Micek applied for and shortly thereafter received a 48' 70' residential building permit seeking to build a x pole barn (3360 sq. ft.), with only 930 square feet of living pace. (Exhibit B annexed to the affidavit submitted by Respondent Town). 4. The Town of Ellicott Code Enforcement Officer granted the building permit, despite the proposed construction not being in conformity with the Town of Ellicott Zoning Code. 5. The Town of Ellicott Zoning Code provides that construction of a garage in excess of 1000 square feet is not permissible in the Agricultural Residential Zoning District where Respondent Micek's residence is located. 6. Petitioner raised an objection to that effect with the Town of Ellicott Code Enforcement Officer and the Town Attorney. 7. The Town of Ellicott Code Enforcement Officer then issued a temporary certificate of occupancy to Respondent Micek with conditions. The first condition was that Respondent Micek Garage" "Apply for an Area Variance for Larger Residential after completion of construction. (Exhibit E annexed to the affidavit submitted by Respondent Town). 8. On February 17, 2022, Respondent Micek appeared before the ZBA seeking an area variance allowing for a garage in excess of the allowable square footage. (Exhibit A annexed to the affidavit submitted by Respondent Town). 9. Petitioner appeared at the ZBA hearing asking that the ZBA deny the application as the requested variance would cause significant disruption to the use and enjoyment of his property. 10. By email dated February 22, 2022, the Town of Ellicott attorney confirmed that the ZBA granted Respondent Micek an area variance allowing a garage of 1600 square feet. The 2 of 10 FILED: CHAUTAUQUA COUNTY CLERK 05/31/2022 02:34 PM INDEX NO. EK12022000275 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 05/31/2022 written decision granting the variance unconditionally was issued on March 17, 2022. (Exhibit A annexed to the affidavit submitted by Respondent Town). ARGUMENT I. Petitioner's challenge to issuance of the certificate of occupancy is not time barred. 11. Petitioner's challenge to the certificate of occupancy is timely. Under CPLR Section 217(1), the four-month statute of limitations does not begin to run until the governing body's " binding" detennination becomes final and upon the petitioner. (emphasis added). 12. As reflected in the temporary certificate of occupancy and in the papers submitted by both Respondents, the temporary certificate of occupancy, issued in July of 2021 was conditioned upon, among other things, the proposed structure passing all of the required inspections and Respondent Micek applying for an area variance. (Exhibit E annexed to the affidavit submitted by Respondent Town). Thus, on the face of the temporary certificate of occupancy, the final certificate of occupancy did not issue until all of the conditions were met. 13. Respondent Micek applied for an area variance on or about February 1, 2022. (Exhibit A annexed to the affidavit submitted by Respondent Town). Moreover, the proposed structure did not pass the final electrical inspection until March 15, 2022, just two days before the instant Petition was filed. (Exhibit D annexed to the affidavit submitted by Respondent Town). 14. Thus, even if the Court were to calculate the statute of limitations pursuant to CPLR Section 217(a) based upon the date of Respondent Micek's application for an area variance, the certificate of occupancy did not become final and binding upon Petitioner until February 1, 2022, less than two months before the instant Petition was filed. 3 of 10 FILED: CHAUTAUQUA COUNTY CLERK 05/31/2022 02:34 PM INDEX NO. EK12022000275 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 05/31/2022 Respondents' 15. Therefore, there is no merit to contention that Petitioner's challenge to the certificate of occupancy is time-barred. 16. To the extent Petitioner had any administrative remedies to exhaust before filing the instant Petition against the certificate of occupancy, he exhausted any such remedies when he opposed the application for an area variance at the Zoning Board meeting on February 17, 2022. Respondents' As such, there is no merit to contention that Petitioner's challenge to the certificate of occupancy is barred for failure to exhaust administrative remedies. 17. For the same reasons, there is no merit to Respondent Micek's contention that Petitioner's challenge to the certificate of occupancy is barred by the doctrine of laches. As such, the relief requested by Respondents must be denied. H. The Town Code Enforcement Officer's issuance of the certificate of occupancy was an abuse of discretion. 18. The issuance of the temporary certificate of occupancy was improper, because it was issued pursuant to an invalid building permit. 19. The building permit should not have been granted, because the proposed structure was significantly out of compliance with Town of Ellicott Zoning Code, which limits the size of a feetl garage to 1000 square The garage portion of the structure that was approved on March 17, 2020 was 2430 square feet, more than double what is permitted under the Zoning Code, after the square footage devoted to living space is subtracted. (Exhibit B annexed to the affidavit submitted by Respondent Town). Respondent Micek's characterization of Petitioner's position as a contention that an area variance is a prerequisite to issuance of a building pennit is somewhat misleading. Petitioner's position is that a building permit should not be issued at all where the proposed structure is not compliant with the applicable Zoning Ordinances, and the proper way for the applicant to go about obtaining approval under those circumstances is by revising the plans for the proposed structure or applying for an area variance. 4 of 10 FILED: CHAUTAUQUA COUNTY CLERK 05/31/2022 02:34 PM INDEX NO. EK12022000275 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 05/31/2022 Respondents' 20. argument that the garage was not out of compliance with the applicable Zoning Ordinance, and that the building permit was therefore properly issued, is without merit. The Town of Ellicott Zoning Board of Appeals, which is responsible for interpreting the Zoning Code, found that the proposed structure was not in conformance with the Zoning Code. Specifically, the Findings of Fact state that the garage is "600 square feet larger than 1000 square Law." feet which is currently permitted by the Town of Ellicott Zoning In addition, the Minutes from the Zoning Board meeting state several times that the attached garage is "larger than the 1000 allowed." square feet (Exhibit A annexed to the affidavit submitted by Respondent Town). 21. It was only after Petitioner raised this issue with the Code Enforcement Officer that the temporary certificate of occupancy was issued, allowing the garage portion of the proposed structure to measure 1600 square feet, which was still out of compliance with the 1000 square foot limit under the applicable Zoning Ordinance. (Exhibit E annexed to the affidavit submitted by respondent Town). 22. As such, the relief requested by Respondents must be denied. Appeals' W. The Zoning Board of decision granting Respondent Micek's area variance was arbitrary and capricious because the Zoning Board of Appeals did not properly consider all of the factors it was required to consider under Section 146-5 of the Town of Ellicott Zoning Code and New York Town Law Section 267-b. 23. Under Section 146-5 of the Town of Ellicott Zoning Code, a variance shall only be granted if not contrary to public interest and a literal interpretation of the provision will result in unnecessary hardship to the applicant. The Findings of Fact and the Minutes from the Zoning Board's decision are completely devoid of any explanation, or even facts from which one could infer that literal interpretation of the Zoning Code limiting the square footage of the garage portion of the structure to 1000 feet would have resulted in unnecessary hardship to Respondent Micek. 5 of 10 FILED: CHAUTAUQUA COUNTY CLERK 05/31/2022 02:34 PM INDEX NO. EK12022000275 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 05/31/2022 Nor do Respondents point to any facts that were before the Zoning Board to support such a conclusion. 24. Even if the Court were to infer that the Zoning Board did consider whether literal interpretation of the Zoning Code would result in unnecessary hardship to Respondent Micek, any such hardship would necessarily have been the result of the Zoning Board being forced to decide the issue retroactively, due to the improper grant of a building permit and certificate of occupancy for a structure that was not compliant with the applicable Zoning Ordinance. 25. If the building permit and certificate of occupancy had been properly withheld, Respondent Micek would have had a choice between applying for an area variance or modifying the plans for his proposed structure. Instead, he was permitted to proceed with the proposed structure despite its noncompliance with the Zoning Code, and the issue was not presented to the Zoning Board until construction of the structure was substantially complete. Respondents' 26. There are no facts before the Court in the Zoning Board's decision, submissions, or otherwise to support an inference that Respondent Micek would have suffered undue hardship if he had ultimately been required to limit the size of the garage to 1000 square feet before beginning construction. 27. Moreover, the Zoning Board did not properly consider all of the relevant factors they were required to consider pursuant to New York Town Law Section 267-b in deciding whether to grant the area variance. Specifically, New York Town law Section 267-b required the Zoning Board to consider all of the following factors before granting the area variance: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by granting of the area variance, (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance, (3) whether the requested area variance is substantial, 6 of 10 FILED: CHAUTAUQUA COUNTY CLERK 05/31/2022 02:34 PM INDEX NO. EK12022000275 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 05/31/2022 (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district, and (5) whether the alleged difficulty was self-created. While no one factor is dispositive, consideration of each factor is required. See Switzgable v. Town of Brookhaven, 78 A.D.3d 842, 844 (2d Dept. 2010). 28. First, the Zoning Board failed to consider whether the benefit sought by Respondent Micek could have been achieved by a feasible method other than an area variance. "An applicant for an area variance bears the burden of establishing that strict compliance with the zoning law difficulties.'" will cause 'practical Gottlieb v. City of Rye, 139 A.D.2d 617, 618 (2d Dept. 1988) (citing Fubst v. Foley, 45 N.y.2d 441, 443 (1978)) "In general, this requires a showing that 'as a practical matter, [an applicant] cannot utilize his property or a structure located thereon without ordinance.'" coming into conflict with certain of the restrictions of the [zoning] Id. (citing Fubst, 45 N.Y.2d at 445). In the event an area variance is granted, the variance must "constitute the hardship." minimum adjustment needed to mitigate the alleged Id. 29. The Findings of Fact and the Minutes contain only a conclusory statement that the variance." benefit sought "could not be pursued without an area The decision is devoid of any discussion of why the benefit would have been impossible to realize with a 1000 square foot garage as opposed to a 1600 square foot garage. Indeed, nothing in the decision even articulates what the desired benefit was. (Exhibit A annexed to the affidavit submitted by Respondent Town). 30. the Board failed to consider whether the alleged was self- Secondly, Zoning difficulty created. When "a property owner elects to convert conforming property into nonconforming property, he cannot be heard to complain that the application of the zoning ordinance has resulted in economic injury to him or that it has deprived him of the reasonable use and enjoyment of his property." Overhill Building Company v. Delaney, 28 N.Y.2d 449, 454-455 (1971). When 7 of 10 FILED: CHAUTAUQUA COUNTY CLERK 05/31/2022 02:34 PM INDEX NO. EK12022000275 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 05/31/2022 "hardship is self-imposed, loss, if any, is not due to an application of the ordinance in question, conduct." but rather as a result of the property owner's Id. At 455. While this factor is not, by "significant" itself, dispositive, it has been considered a factor militating against approval of the weight." application, or a factor entitled to "great See Carlucci v. Town ofPhilipstown, 205 A.D.2d 688 (2d Dept. 1994); Kattke v. Village of Freeport, 200 A.D.2d 746 (2d Dept. 1994); D'Angelo v. Hartman, 187 A.D.2d (4th Dept. 1992); Nammack v. Krucklin, 149 A.D.2d 596 (2d Dept. 1989); Byron Associates v. Town of Mamaroneck, 142 A.D.2d 643 (2d Dept. 1988); Power House Home Road Corp. v. Town of Hempstead, 171 A.D.2d 796 (2d Dept. 1991). 31. It is clear from the Zoning Board decision, and the Findings of Fact and Minutes annexed thereto, that the Zoning Board gave very little weight to the issue of whether the need for the variance was self-created. The only mentions of this factor in the Zoning Board's decision are imposed," a conclusory statement in the Findings of Fact that "the hardship in question is not self self-created." and a conclusory statement in the Minutes that the "difficulty was not There is no mention of any specific facts that led to that conclusion. (Exhibit A annexed to the affidavit submitted by Respondent Town). 32. Most significantly, the Zoning Board's decision contains no mention of the fact that Respondent Micek chose to bring construction to substantial completion before applying for an area variance, despite having been aware of his requirement to do so seven months before his application. (Exhibit E annexed to the affidavit submitted by Respondent Town). 33. Finally, the Zoning Board's decision does not meet the requirement imposed by New necessary." York Town Law Section 267-b, that it "grant the minimum variance that it shall deem The Zoning Board has authority under New York Town Law Section 267-b to impose reasonable conditions upon the grant of an area variance. There is no evidence in any part of the Zoning 8 of 10 FILED: CHAUTAUQUA COUNTY CLERK 05/31/2022 02:34 PM INDEX NO. EK12022000275 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 05/31/2022 Board's decision that it even considered any potential conditions to attempt to mitigate the concerns raised by Petitioner at the meeting. For example, there is no mention of the possibility of requiring Respondent Micek to install a privacy fence, limiting the number of vehicles permitted on the property, or placing restrictions on commercial use. Indeed, nothing in the decision states or even suggests that its unconditional grant of the requested variance was the minimum variance deemed necessary. 34. Because the Zoning Board plainly failed to consider several of the factors it was required to consider under Section 146-5 of the Town of Ellicott Zoning Code and New York Town Law Section 267-b, its decision to grant the area variance was an abuse of discretion. Therefore, the relief requested by Respondents must be denied. CONCLUSION 35. As outlined supra, it is respectfully submitted that the Town Code Enforcement Officer's issuance of the certificate of occupancy was an abuse of discretion, because it improperly pennitted construction of a building that was not in compliance with the Zoning Code. It is further Appeals' respectfully submitted that the Zoning Board of decision granting the area variance was an abuse of discretion because it did not