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Katz v. Bodkin

ELR Citation: 9 ELR 20423
Nos. No. 3312/79, 428 N.Y.S.2d 1009/(N.Y. Sup. Ct., 05/15/1979)

The court reverses a municipal zoning board's denial of homeowners' request for a zoning variance to allow installation of a rooftop solar collector. The section of the town zoning ordinance upon which the board relied, when strictly construed, does not apply to the installation of solar collectors. Moreover, the board misread the ordinance when it determined that the restriction on mechanical equipment to 10 percent of roof area refers to the section of the roof supporting the solar panels rather than to the roof as a whole. In addition, the court finds that petitioners have made a sufficient showing of practical difficulty to justify issuance of an area variance. The court also rules that restrictive local zoning action must give way to some extent to the declared national and state policies of encouraging energy conservation and the use of solar energy devices for private dwellings. As a final ground for its decision, the court holds that the board's use of closed sessions to make its decisions regarding petitioners' request violated the town Open Meetings Law. The denial of petitioners' request for a variance was therefore both arbitrary and in violation of the relevant legal requirements, and the board is thus ordered to issue petitioners a building permit.

Counsel for Petitioners
Jay A. Kranis, Arthur A. Katz
Warshaw, Burstein, Cohen, Schlesinger & Kuh
555 Fifth Ave., New York NY 10017
(212) 972-9100

Counsel for Respondents
James J. Johnston, Mamaroneck Town Attorney
1889 Palmer Ave., Larchmont NY 10538
(914) 834-4662

Counsel for Amicus Curiae New York State Common Cause
Stanley H. Lieberstein
Ostrolenk, Faber, Gerb & Soffen
260 Madison Ave., New York NY 10016
(212) 685-8470