City ZBA reaffirms decision after court appeal

Almost exactly one year from originally considering a variance for a deck, and after a court appeal, the city of Dunkirk Zoning Board of Appeals came to the same conclusion.

In 2013, a deck was built at 72 W. 4th St. without first getting a permit. In July 2013, property owner Stephen O’Brien appeared before the ZBA, seeking a variance for the deck.

Also attending that public hearing were several of O’Brien’s neighbors, who complained that the deck crowds their properties and puts their homes at risk of fire spreading.

The ZBA allowed O’Brien to keep his deck.

In September 2013, a petition was filed to take the case to state supreme court.

Judge Deborah A. Chimes decided to send the case back to the zoning board to consider more closely.

“The supreme court referred this appeal back to the zoning board of appeals for further consideration of the factors enumerated under General City Law,” Chairman Bob Bankoski said at the ZBA’s recent meeting.

He stated no further testimony would be heard.

The board considered the seven factors spelled out in the General City Law to decide whether to again approve or deny the variance.

First, the board determined the deck, which was built on a steep slope, does not pose a detriment to the neighborhood.

“It enhances the property,” Bankoski said.

It was also noted that the deck enhances the physical condition of the neighborhood.

The board also determined the land in its original state had no use and there was little else that could be done with it unless it was leveled.

When discussing the setback requirements, it was decided nothing could be done to comply.

“It is impossible to comply because the yards in that area are so small,” Board member Stephen Helwig pointed out.

It was noted a majority of the properties in that neighborhood are over the 35 percent building coverage allowance and the home in question was over the allowance at the time the O’Briens purchased it. This led to the conclusions that it would be impossible to comply with the rule and that granting the variance would not result in a substantial variation from the rest of homes in the neighborhood.

With all these conclusions defined, board members unanimously voted yes to allow the variance for the deck.

The ZBA will meet again on Sept. 3 if necessary.

Comments on this article may be sent to