Homeowner in Yorktown was issued a building permit to construct an attached den and garage to his house. Neighbor brought a challenge before the Zoning Board of Appeals that the expansion was not an addition but an “accessory building.” ZBA affirmed the permit as valid, and Neighbor commenced an Article 78 proceeding. The Supreme Court annulled the ZBA determination, and Homeowner appealed.

On appeal, the Appellate Division reversed the lower court’s finding that the ZBA’s decision was “unreasonable and irrational.” According to the ordinance, an accessory building can be attached or separate, but the primary consideration is that its use is “incidental” to the main building. Here, the ZBA considered evidence that the proposed add-on was going to be used as a “conventional living space” rather than a “breezeway” or “connecting corridor.” Based on that, the Court found the ZBA’s determination that the permit was in fact for an addition, not an accessory building.

The case was Witkowich v Zoning Board of Appeals of Town of Yorktown, 2015 WL 6982380 (NYAD 2 Dept. 2015).