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stoane  
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 More options Dec 10 2005, 1:48 pm
From: stoane <sto...@usa.net>
Date: Sat, 10 Dec 2005 10:48:42 -0800
Local: Sat, Dec 10 2005 1:48 pm
Subject: ZBA Error

Bill,

With respect to your reply to Joan's questions:

1.  The lots in question were not designated as building lots by the P&Z.  The ZBA can't create building lots for a developer when the P&Z has not approved that request. 
Therefore, the question of a variance on the frontage of lots previously not approved by the P&Z is moot.  From the ZBA rules: At no time is it within the scope of the Zoning Board of Appeals' power to hear an appeal on a decision of the Planning and Zoning Commission. 

2.   The ZBA can only act on variance requests related to specific hardships.  Again from its rules: This hardship cannot be an exclusively economic hardship and should be inherent in the land (ie., depth to bedrock, slope).  The the stated hardship given by the ZBA in rendering its decision is what it called a "City created hardship."  As you will note, there is no such thing as a "City created hardship" in the ZBA code.  If anything, by taking the four rear lots out of the plan when it was presented to the P&Z, the developer created a "self imposed hardship," specifically not allowed by the Code.

Len Stoane



Warner, Bill wrote:
Joan 

In response to your questions,

(1) if the ZBA had proper authority to hear this application in light of the ZBA
code, 

The ZBA granted frontage variances, they did not hear an appeal to a PZ decision. So yes they have authority.

(2) if they did have the authority was the decision in keeping
with the code and

If there was a hardship the ZBA could grant the variance. It is up to the ZBA to listen to both sides and decide if there is a legitimate hardship. In this case they decided there was a hardship.

(3) what recourse might be available to dispute the decision. 

Pursuant to state statute, just like IWWA and PZ the recourse is to the Superior Court. No official or other Commission has any oversight over their decisions.

This matter has to go back to PZ for a resubdivision of the lots into 4 lots so there will be another hearing sometime in the future.

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Warner, Bill  
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 More options Dec 10 2005, 9:02 pm
From: "Warner, Bill" <Bill.War...@CityOfMiddletown.com>
Date: Sat, 10 Dec 2005 21:02:36 -0500
Local: Sat, Dec 10 2005 9:02 pm
Subject: RE: ZBA Error

Len

As I stated the proposed lots now go back to PZ.,,,a lot in the R-30 zone requires 150 feet of frontage. He got a variance to that requirment, not an appeal of a PZ decision.

As stated its up to the ZBA to determine if a hardship exists or not, so no sense arguing whether they are right or wrong...the decision stands unless overturned by Superior Court.


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