Kensington pair beats City Hall

Dan Glaun

Two Village of Kensington residents have won a court battle with the village’s Zoning Board of Appeals after the board rejected the pair’s plan to renovate their home as exceeding density limits.

A June decision by state Supreme Court Judge Dana Winslow overturned the ruling by the zoning board, ordering the village to grant residents Noah Leibowitz and Susannah Malen a variance to renovate their home.

Last year the zoning board rejected Leibowitz and Malen’s petition to exceed the village’s density limits in their plan to renovate their home, which would have expanded their kitchen and bedroom in addition to other changes. 

But the court found a lack of “rational support” in the board’s reasoning, which included the argument that the planned addition of 111 square feet in floor area would create a “crowded appearance” in the neighborhood.

“Specifically, the board’s finding that an ‘undesirable change in the neighborhood’ would result by virtue of the alterations is couched in circuitously qualified language whose precise import is unclear and obscure,” wrote Winslow in the opinion.

Village of Kensington Mayor Susan Lopatkin said the village could not yet comment on the decision, as it had not been formally notified of the ruling by the county.

“We will be conferring with our attorneys to see if we will appeal,” Lopatkin said.

Leibowitz said in an interview that he and Malen were pleased with the court’s ruling but concerned with the amount of public money the village had spent litigating the case.

“Obviously we were very happy that the judge decided to overturn the board’s decision. We think the judge made the right call,” Leibowitz said. “We were disappointed that it had to progress that far, and we thought the board could have been more reasonable with us when we were before the board.”

Leibowitz and Malen bought the home in 2002, with the house conforming to existing density regulations. A 2011 change to how the village calculates floor-to-area ratio placed the house 73 square feet above the village’s density limit, meaning that any expansion to floor space would run afoul of village code. 

They appealed to the zoning board for a variance, and after changing their renovation plan to reduce the increase in floor space to an additional 111 square feet, were rejected by the board.

Leibowitz and Malen argued that the renovation would have been a minimal increase above the allowed ratio, and that their home was only in violation due to changes in code years after they purchased the property. 

According to the court decision, they had a real estate expert testify that nearby properties had comparable floor-to-area ratios and 21 neighbors gave written or vocal support to the renovation with no neighbors opposing the plan before the board.

The board rejected the density variances by a three to one vote, citing additional bulk that would create a “crowded appearance” in the neighborhood. The board also there were no similar variances granted in the immediate area, that the 184 square foot variance was substantial and that allowing greater density could damage the unique character of the village, according to the court ruling.

The court ruled that while zoning boards have wide latitude in approving or denying variances, the board’s ruling was not supported by the record. 

According to the court decision, the board did not specifically identify how the renovation would cause crowding or harm the neighborhood. The court also cited neighbors’ testimony in favor of the variance as evidence that the renovation would not burden the community.

Should Leibowitz and Malen obtain the variance – an uncertainty, given that the village could still pursue an appeal – the plan would go before the village’s architectural review board.

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