Blanchfield v. Town of Hoosick

• Decision Date: 20 April 2017
• Citation: 53 N.Y.S.3d 226,149 A.D.3d 1380
• Parties: In the Matter of Karen M. BLANCHFIELD, Doing Business as Royale Blanche Farms, Appellant, v. TOWN OF HOOSICK et al., Respondents.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 1380

53 N.Y.S.3d 226

In the Matter of Karen M. BLANCHFIELD, Doing Business as Royale Blanche Farms, Appellant,

v.TOWN OF HOOSICK et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

April 20, 2017.

Cooper Erving & Savage LLP, Albany (Carlo A.C. de Oliveira of counsel), for appellant.

Schopf Law, PLLC, Clifton Park (Jonathan G. Schopf of counsel), for respondents.

Before: GARRY, J.P., LYNCH, CLARK, MULVEY and AARONS, JJ.

MULVEY, J.

Appeal from a judgment of the Supreme Court (Melkonian, J.), entered May 27, 2016 in Rensselaer County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Town of Hoosick Zoning Board of Appeals denying petitioner's request for, among other things, a special use permit.

Petitioner is the owner of property in the Town of Hoosick, Rensselaer County on which she operates a dog training and handling business. In April 2015, following a noise complaint from a neighbor, the Code Enforcement Officer of respondent Town of Hoosick determined that petitioner's use of her property was in violation of the Town's Land Use Law and that a special use permit and site plan approval were required. Petitioner was similarly advised by the Town's Zoning Board of

Appeals (hereinafter the ZBA). Petitioner submitted an application for a special use permit and for site plan approval and, after meeting with the ZBA over several months, the ZBA determined petitioner's applications complete and public hearings were held. Citing the current and foreseeable impact of dog noise on the neighbors, the ZBA denied petitioner's applications. Petitioner then commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition, and petitioner appeals.

Initially, we note that when petitioner appeared before the ZBA, she did not raise her contention that the ZBA violated its own rules when it failed to refer her applications to the Town's Planning Board for a recommendation (see Land Use Law of the Town of Hoosick § 7.6.1). Accordingly, that issue may not now be raised in this proceeding (see Matter of Mary T. Probst Family Trust v. Zoning Bd. of Appeals of Town of Horicon, 79 A.D.3d 1427, 1427–1428, 913 N.Y.S.2d 813 [2010], lv. denied 16 N.Y.3d 708, 2011 WL 1161714 [2011] ; Matter of Showers v. Town of Poestenkill Zoning Bd. of Appeals, 56 A.D.3d 1108, 1109, 867 N.Y.S.2d 782 [2008] ).

Petitioner claims that Supreme Court erred when it determined that she was required to obtain both a special use permit and site plan approval. First, she bases her claim that no special use permit is required on the theory that her business consists of the operation of a boarding kennel and breeding kennel, which uses are permitted by right.¹ Petitioner's property is located in a district designated "Agricultural/ Residential" (see Land Use Law of Town of Hoosick §§ 2.1.4, 3.2) in which boarding kennels and breeding kennels are permitted uses with site plan approval (see Land Use Law of Town of Hoosick § 3.2). In the Land Use Law, a breeding kennel is defined as "a facility where dogs are bred for sale, with more than nine dogs sold in one year" (Land Use Law of Town of Hoosick ch. 13). A boarding kennel is defined as "a facility that accepts transient dogs and cats for short duration stays" (Land Use Law of Town of Hoosick ch. 13). Petitioner's application for a special use permit described the existing and proposed use as "agriculture, training + show dog handling school + referral service." Her application for site plan approval similarly described the intended use as " training + handling center for show dogs," as did the short environmental assessment form that she submitted. Since petitioner's use of the property, as described by her, does not fit within the definitions of boarding kennel or breeding kennel, the ZBA properly determined that she was required to obtain a special use permit (see Land Use Law of Town of Hoosick § 3.1).² " It is well settled that unless the issue presented is one of pure legal interpretation, a zoning board's interpretation of a local zoning ordinance is afforded deference and will only be disturbed if irrational or unreasonable" (matter of lumberJack pass Amusements, llc V. town of qUEEnsbuRy zoninG Bd. of Appeals, 145 A.D.3d 1144, 1145, 42 N.Y.S.3d 473 [2016] [internal quotation marks, brackets and citations omitted] ).

Next, petitioner asserts that site plan review is not required since the business use of the property began in 2006, well before the 2009 enactment of the Land Use Law and the enactment of the 2014 version of a site plan review local law. We find petitioner's argument that she is allowed to continue her business as a lawful nonconforming use without site plan approval to be without merit (see Land Use Law of Town of Hoosick § 5.1). In 2001, the Town enacted a local law which provided, as is relevant here, that all changes in use required site plan approval by the Planning Board (see Site Plan Review Law for the Town of Hoosick, part II, § 2[C] ). When petitioner began her business in 2006, this constituted a change in use of her residential property and, accordingly, site plan approval was required at that time. To have a protected interest at the time of enactment of the Land Use Law in 2009, petitioner had to have received site plan approval pursuant to the 2001 Site Plan Review Law. Since petitioner never applied for or received site plan approval for her business use, such use was not a lawful nonconforming use at the time of the enactment of the Land Use Law in 2009 (see Glacial Aggregates LLC v. Town of Yorkshire, 14 N.Y.3d 127, 136, 897 N.Y.S.2d 677, 924 N.E.2d 785 [2010] ; Matter of Martinos v. Board of Zoning Appeals of Town of Brookhaven, 138 A.D.3d 859, 860, 29 N.Y.S.3d 497 [2016] ). Further, petitioner's proposal, as reflected in her applications and the petition, is to enlarge and expand such use by employing trainers, handlers and groomers and by increasing the number of dogs on the premises. This modification and expansion of the use triggers the need for site plan approval (see Site Plan Review Law of the Town of Hoosick, § 3.010 [2014] ). We find that Supreme Court did not err when it determined that petitioner needed site plan approval since this determination "is largely a fact-based inquiry, rather than a purely legal interpretation of the zoning law" (Matter of Lumberjack Pass Amusements, LLC v. Town of Queensbury Zoning Bd. of Appeals, 145 A.D.3d at 1145, 42 N.Y.S.3d 473 ). However, we disagree with the ZBA's denial of the special use permit and site plan approval.

When a zoning law enumerates a use as allowed by special use permit, it " ‘is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood’ " (Matter of Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 98 N.Y.2d 190, 195, 746 N.Y.S.2d 662, 774 N.E.2d 727 [2002], quoting Matter of North Shore Steak House v. Board of Appeals of Inc. Vil. of Thomaston, 30 N.Y.2d 238, 243, 331 N.Y.S.2d 645, 282 N.E.2d 606 [1972] ; accord Matter of Frigault v. Town of Richfield Planning Bd., 128 A.D.3d 1232, 1233, 9 N.Y.S.3d 708 [2015], lv. denied 26 N.Y.3d 911, 22 N.Y.S.3d 163, 43 N.E.3d 373 [2015] ). An applicant is required to demonstrate "compliance with the conditions legislatively imposed upon the permitted use" (Matter of PDH Props. v. Planning Bd. of Town of Milton, 298 A.D.2d 684, 685, 748 N.Y.S.2d 193 [2002] ), and a special use permit may be denied only if substantial evidence in the record corroborates such decision and it is not based on generalized community objections (see Matter of Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 98 N.Y.2d at 196, 746 N.Y.S.2d 662, 774 N.E.2d 727 ).

Land Use Law of the Town of Hoosick § 3.1 provides that "[a]ny use not listed in the schedule may be allowed by [s]pecial [p]ermit pursuant to [c]hapter 7, only if it can meet all applicable standards." Chapter 7 delegates to the ZBA the authority "to review and act upon all special permit uses in accordance with standards and procedures set forth in ... [c]hapter [7]" (Land Use Law of Town of Hoosick § 7.1). Upon determining that an application is complete, the ZBA "shall review the application, taking into consideration the standards for [s]pecial [p]ermit review outlined in [s]ection 7.2 ..., and any other special requirements for a particular use contained in this [l]ocal [l]aw" (Land Use Law of the Town of Hoosick § 7.4.3).³ In compliance with the general ...