New York Appellate Division Reports

BARTOSZEWSKI v. TOWN OF HANNIBAL ZONING, CA 06-01775 [4th
Dept 12-22-2006] 2006 NY Slip Op 09931 MATTER OF DAVID
BARTOSZEWSKI, PETITIONER-APPELLANT, v. TOWN OF HANNIBAL
ZONING BOARD OF APPEALS, RESPONDENT-RESPONDENT. CA
06-01775. Appellate Division of the Supreme Court of New
York, Fourth Department. Decided and Entered: December 22,
2006.

Appeal from a judgment of the Supreme Court, Oswego County
(Norman W. Seiter, Jr., J.), entered September 9, 2005 in a
proceeding pursuant to CPLR article 78. The judgment
dismissed the petition.

JARROD W. SMITH, SYRACUSE, FOR PETITIONER-APPELLANT.

DENNIS N. HAWTHORNE, JR., FULTON, FOR
RESPONDENT-RESPONDENT.

PRESENT: SCUDDER, P.J., MARTOCHE, CENTRA, AND PINE, JJ.

It is hereby ORDERED that the judgment so appealed from be
and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioner was issued a building permit to
erect a new roof on a building on his property. After
construction began, the Town of Hannibal’s Code Enforcement
Officer revoked the permit and issued a stop work order
because the construction violated the setback requirements
of the Town of Hannibal Zoning Law (Zoning Law) and
petitioner did not have a valid permit or variance. Rather
than merely placing a new roof on the existing structure as
indicated in his application for the building permit that
was issued, petitioner removed a fence at his property
line, built a wall in its place, and then extended the roof
from the existing structure to the new wall, thereby
expanding the structure. Petitioner appealed to respondent,
Town of Hannibal Zoning Board of Appeals (ZBA), to
reinstate the building permit and find that it authorizes
the construction described above, contending that the
setback requirement does not apply due to a preexisting
nonconforming structure on the property. The ZBA denied the
appeal and petitioner commenced this CPLR article 78
proceeding.

Supreme Court properly dismissed the petition. The ZBA’s
determination denying petitioner’s appeal seeking
reinstatement of the building permit is rational and is not
arbitrary or capricious (see Matter of Ifrah v Utschig, 98
NY2d 304, 309; Matter of Carrier v Town of Palmyra Zoning
Bd. of Appeals, 30 AD3d 1036, 1038; Matter of Hoag v Zoning
Bd. of Appeals of Town of Clinton, 27 AD3d 742). The ZBA
properly determined that concrete footers, steel posts and
a fence that existed on the property line did not
constitute a wall of the existing structure. Moreover,
there was no roof from the existing structure to that fence
when the Zoning Law was enacted in 1999. Without showing
that a wall and a roof existed in 1999, petitioner could
not demonstrate a preexisting nonconforming structure on
the property such that the Zoning Law’s setback
requirements would not apply. In order to erect the wall
and extend the roof, petitioner was required to apply for a
variance, which he chose not to do. We have considered
petitioner’s remaining contentions and conclude that they
are without merit.