If you are not happy with a governmental decision, then you can go to court, and that is exactly what three people have decided to do.
The issue concerns a recent decision by the city of Dunkirk Zoning Board of Appeals to grant a variance for a deck at a neighbor's house.
According to the petition to the Supreme Court of the State of New York County of Chautauqua filed in October, two of the petitioners, Brian W. Pusch and Paula J. Tofil, the owners of 68 W. Fourth St., reside in East Aurora. The third is Mary Marden Cobb, who resides at 327 Dove St.
OBSERVER Photo by Gib Snyder
Pictured is the deck, yards and buildings that are part of an appeals case in State Supreme Court in Mayville scheduled for today. The Dunkirk Zoning Board of Appeals granted a variance for the deck at the residence of Stephen O’Brien, which led to the court filing by adjoining property owners Brian Pusch, Paula Tofil and neighbor Mary Marden Cobb.
The deck in question was built without a permit at 72 W. Fourth St. Stephen O'Brien and family built the deck at their home, and O'Brien ended up before the ZBA seeking a variance on July 23.
A letter to the ZBA dated July 18 and signed by Pusch and Tofil states they were not present at their Fourth Street home when the O'Briens built the deck. The letter states the deck crowds their house and presents a significant risk of fire spreading, in addition to impairing the value of their property. The letter asked the ZBA to deny the variance and require the removal of the deck.
Exhibit A of the petition is the minutes of the July 23 ZBA meeting, in which O'Brien admits he built the deck without a permit, "out of ignorance, not arrogance," and apologized for the error. He added he built the deck to allow use of that portion of his lot, because its slope and lack of width hindered its use.
The ZBA reserved its decision at the meeting, pending the submittal of a survey showing the deck in relation to the property line. In addition, it directed O'Brien to try and find a remedy with the neighbors.
That remedy did not occur, and at the ZBA's Sept. 24 meeting, O'Brien presented a letter from Richard Ciraulo, 329 Dove St., giving his OK to the deck. O'Brien also presented a survey showing the deck was on his property, although not in compliance.
Pusch testified at that meeting. In addition to citing the out-of-compliance issues, he also told the ZBA the deck will cause detriments to the property owned by him and his wife, including interfering with their privacy.
During his testimony, ZBA Chairman Bob Bankoski asked Pusch where he lived, and he said 68 W. Fourth, "the house next door."
Pusch said they like the O'Briens, but were "unfortunately opposed."
After deliberations, the ZBA granted O'Brien a variance for the deck as it was built. The ZBA required O'Brien to install a railing and steps and comply with his testimony. The ZBA's findings of fact stated the grading of the property rendered the lay of the land useless and the deck will not alter the essential character of the neighborhood since a brick patio and elevated back porch already existed.
On Oct. 23, Pusch, Tofil and Cobb, through attorney Dan Gard, filed the notice of petition. The petition states that pursuant to NYS General City Law and Article 78 of Civil Practice Law and Rules, it was seeking the annulment of the ZBA's determination.
The property at 68 W. Fourth St. is listed as an apartment house in the city assessment rolls. The taxable value of the property is listed at $76,000, with a full market value of $92,700. The lot size is 120 by 90 feet.
The property at 72 W. Fourth St. is listed as a one-family residence with a taxable value of $50,000 and a full market value of $61,000. The lot size shows 40 by 90 feet with another entry of bank, 80 feet.
City Attorney Ron Szot was asked what the legal issues were.
"If someone wants to get a building permit for a certain change on their residence, on their premises, if they didn't comply with the zoning code or building code, it would be rejected by the building inspector. Then the property owner would have the right to appeal to the Zoning Board of Appeals," he said. "The Zoning Board of Appeals would take testimony, take evidence, then make a decision. Then, aggrieved parties can appeal the Zon-ing Board of Appeals decision in an Article 78 proceeding in State Supreme Court."
Szot was asked whether the fact the deck was built without a permit in the first place had any bearing.
"We have a first appearance next Monday in front of Judge (Deborah A.) Chimes, so I really don't have anything further to mention about the case," he replied.
Gard is a former city attorney. He said the address difference may be because of a move during the period the issue was being raised.
"It's a shame that it had to come to this. We tried to approach the city about coming to some resolution and we didn't get anywhere," Gard stated.
Proceedings are scheduled to begin in Mayville at 10 a.m.
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