Development

Landowner Entitled to Variance for Building That Extends over Easement

Matter of Goldberg v. Zoning Board of Appeals

NYLJ 12/20/10, p. 26, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In neighbors' hybrid article 78 proceeding and declaratory judgment action challenging grant of a variance and challenging landowner's right to built atop an easement, landowner appealed from Supreme Court's grant of the petition and dismissal of the declaratory judgment action as academic. The Appellate Division reversed, holding that grant of the variance was not arbitrary or capricious, and that landowner was entitled to build atop the easement so long as the construction did not disturb dominant owners' rights of ingress and egress.

Landowner owns a single-story oceanfront bungalow in Long Beach. The bungalow was originally one of ten built in two rows along a common walkway running parallel to the beach. Each end of the common walkway ran into a street. In a 1930s hurricane, the five bungalows closest to the water were destroyed. Subsequently, the owner of the bungalows subdivided the land into five separate lots, each with a bungalow, and each bisected by the common walkway. The subdivider gave each of the lot owners an easement for ingress and egress to the streets running perpendicular to the walkway. Landowner's lot is the middle of the five, each of which is only 20-feet wide. After landowner bought her current lot, a purchaser acquired the two lots to the east and built a single home on that parcel, and another purchaser acquired the two lots to the west and built a single home on that parcel. Landowner then sought to expand her own bungalow by building a second-story addition that would extend 12 feet above the common walkway, supported by posts, and onto the southern portion of the property on the other side of the walkway.

The extension required variances, because the maximum building area exceeded that permitted under the zoning ordinance. The zoning board of appeals granted the area variances, concluding that any detriment to health, safety and welfare was outweighed by the benefit to landowner. Neighbors then brought this proceeding, challenging the grant of the area variance, and also seeking a declaration that the easement precluded landowner from building over the common walkway. Supreme Court invalidated the variance, rendering any decision about the easement academic. Landowner appealed.

In reversing, the Appellate Division emphasized the discretion accorded to zoning boards of appeals in evaluating area variance applications, and concluded that the board's determination was not arbitrary and capricious. The court then turned to the easement, and held that when an easement is granted only for ingress and egress, the servient owner may narrow it or cover it so long as the right of passage is not impaired. Here, the court rejected the neighbors' argument that covering the walkway would create a dark and frightening alleyway, noting that landowner had agreed to illuminate the walkway with lights controlled by motion sensors. As a result, the proposed construction would not interfere with neighbors' easement rights.

COMMENT

A servient owner cannot obstruct a dominant owner's access over an easement by fencing or gating the easement. Such an impairment of access would entitle the dominant owner to an injunction. Rozek v. Kuplins, 266 A.D.2d 445 (court ordered defendants to remove fence, gate, and debris that impeded plaintiff's access to the right of way; B.J. Corp. v. Mester, 262 A.D.2d 732 (court ordered gate to be removed because it interfered with plaintiff's right of access).

Covering an easement at a reasonable height does not constitute an obstruction. Thus, in Andrews v. Cohen, 221 N.Y. 148, 157 the servient owner covered the old right of way for a distance of about 63 feet, leaving a clearance or headroom of 11' feet. The court held that unless the language of the easement provides otherwise, “the owner of the servient tenement in a city always has the right to cover a right of way so long as sufficient headroom is preserved and so long as such action does not make the use of the right of way impracticable or unreasonably inconvenient” Similarly, the court in Matter of Goldberg held that the addition to the servient landowner's bungalow did not impair the neighbor's use of the common walkway for ingress and egress.

Even when the agreement creating an easement specifies the easement's dimensions, the servient owner may narrow those dimensions so long as the servient owner does not interfere with access. For example, in Sambrook v. Sierocki, 53 A.D.3d 817, the court awarded summary judgment to servient owner on dominant owner's claim that servient owner had improperly interfered with the easement by constructing a stockade fence and placing landscaping along the western side of the common driveway over which dominant owner held an easement. Dominant owner claimed that the fence and landscaping prevented full enjoyment and use of the easement by precluding use of the side of the driveway for parking, butthe court held because the easement was for access, parking was not a proper use of the easement. Even though the easement's dimensions were defined as being 25' feet in width by 138.02 in length, and construction of the fence and landscaping limited the width to 12 feet, the court held that servient owner had not violated the terms of the easement because the fence and landscaping did not impede the usage of the common driveway for the stated purpose of ingress and egress.

Landowner Entitled to Variance for Building That Extends over Easement

Matter of Goldberg v. Zoning Board of Appeals

NYLJ 12/20/10, p. 26, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In neighbors' hybrid article 78 proceeding and declaratory judgment action challenging grant of a variance and challenging landowner's right to built atop an easement, landowner appealed from Supreme Court's grant of the petition and dismissal of the declaratory judgment action as academic. The Appellate Division reversed, holding that grant of the variance was not arbitrary or capricious, and that landowner was entitled to build atop the easement so long as the construction did not disturb dominant owners' rights of ingress and egress.

Landowner owns a single-story oceanfront bungalow in Long Beach. The bungalow was originally one of ten built in two rows along a common walkway running parallel to the beach. Each end of the common walkway ran into a street. In a 1930s hurricane, the five bungalows closest to the water were destroyed. Subsequently, the owner of the bungalows subdivided the land into five separate lots, each with a bungalow, and each bisected by the common walkway. The subdivider gave each of the lot owners an easement for ingress and egress to the streets running perpendicular to the walkway. Landowner's lot is the middle of the five, each of which is only 20-feet wide. After landowner bought her current lot, a purchaser acquired the two lots to the east and built a single home on that parcel, and another purchaser acquired the two lots to the west and built a single home on that parcel. Landowner then sought to expand her own bungalow by building a second-story addition that would extend 12 feet above the common walkway, supported by posts, and onto the southern portion of the property on the other side of the walkway.

The extension required variances, because the maximum building area exceeded that permitted under the zoning ordinance. The zoning board of appeals granted the area variances, concluding that any detriment to health, safety and welfare was outweighed by the benefit to landowner. Neighbors then brought this proceeding, challenging the grant of the area variance, and also seeking a declaration that the easement precluded landowner from building over the common walkway. Supreme Court invalidated the variance, rendering any decision about the easement academic. Landowner appealed.

In reversing, the Appellate Division emphasized the discretion accorded to zoning boards of appeals in evaluating area variance applications, and concluded that the board's determination was not arbitrary and capricious. The court then turned to the easement, and held that when an easement is granted only for ingress and egress, the servient owner may narrow it or cover it so long as the right of passage is not impaired. Here, the court rejected the neighbors' argument that covering the walkway would create a dark and frightening alleyway, noting that landowner had agreed to illuminate the walkway with lights controlled by motion sensors. As a result, the proposed construction would not interfere with neighbors' easement rights.

COMMENT

A servient owner cannot obstruct a dominant owner's access over an easement by fencing or gating the easement. Such an impairment of access would entitle the dominant owner to an injunction. Rozek v. Kuplins, 266 A.D.2d 445 (court ordered defendants to remove fence, gate, and debris that impeded plaintiff's access to the right of way; B.J. Corp. v. Mester, 262 A.D.2d 732 (court ordered gate to be removed because it interfered with plaintiff's right of access).

Covering an easement at a reasonable height does not constitute an obstruction. Thus, in Andrews v. Cohen, 221 N.Y. 148, 157 the servient owner covered the old right of way for a distance of about 63 feet, leaving a clearance or headroom of 11' feet. The court held that unless the language of the easement provides otherwise, “the owner of the servient tenement in a city always has the right to cover a right of way so long as sufficient headroom is preserved and so long as such action does not make the use of the right of way impracticable or unreasonably inconvenient” Similarly, the court in Matter of Goldberg held that the addition to the servient landowner's bungalow did not impair the neighbor's use of the common walkway for ingress and egress.

Even when the agreement creating an easement specifies the easement's dimensions, the servient owner may narrow those dimensions so long as the servient owner does not interfere with access. For example, in Sambrook v. Sierocki, 53 A.D.3d 817, the court awarded summary judgment to servient owner on dominant owner's claim that servient owner had improperly interfered with the easement by constructing a stockade fence and placing landscaping along the western side of the common driveway over which dominant owner held an easement. Dominant owner claimed that the fence and landscaping prevented full enjoyment and use of the easement by precluding use of the side of the driveway for parking, butthe court held because the easement was for access, parking was not a proper use of the easement. Even though the easement's dimensions were defined as being 25' feet in width by 138.02 in length, and construction of the fence and landscaping limited the width to 12 feet, the court held that servient owner had not violated the terms of the easement because the fence and landscaping did not impede the usage of the common driveway for the stated purpose of ingress and egress.