Casey v. Town of Arietta Zoning Bd. of Appeals

• Decision Date: 21 February 2019
• Docket Number: 527104
• Parties: In the Matter of John CASEY et al., Appellants, v. TOWN OF ARIETTA ZONING BOARD OF APPEALS et al., Respondents.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 1231
94 N.Y.S.3d 649

In the Matter of John CASEY et al., Appellants,
v.
TOWN OF ARIETTA ZONING BOARD OF APPEALS et al., Respondents.

527104

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

Calendar Date: January 11, 2019
Decided and Entered: February 21, 2019

94 N.Y.S.3d 651

Whiteman Osterman & Hanna LLP, Albany (Robert S. Rosborough IV of counsel), for appellants.

Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Leah Everhart of counsel), for respondents.

Before: Lynch, J.P., Clark, Mulvey, Devine and Aarons, JJ.

MEMORANDUM AND ORDER

Mulvey, J.

169 A.D.3d 1231

Appeal from an order and judgment of the Supreme Court (J. Sise, J.), entered November 3, 2017 in Hamilton County, which dismissed petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to review a determination of respondent

169 A.D.3d 1232

Town of Arietta Zoning Board of Appeals denying petitioners' request for a building permit.

Petitioners own a 2.6–acre parcel located in a residential zone in the Town of Arietta, Hamilton County. The property contains a 3,200–square–foot residence, a detached 1,200–square–foot garage and a boathouse. In August 2014, petitioners applied for a building permit to construct a 2,016–square–foot pole barn to be used for storage purposes. In their application, petitioners labeled the pole barn as an accessory use structure. Respondent Mel LaScola, the Town's Zoning Officer (hereinafter the Zoning Officer), asserted that the pole barn constituted a principal building as defined by the Town of Arietta Land Use Code former § 2.020(h) due to it exceeding 1,250 square feet. Because petitioners' property already contained a home as a principal building and a 1,200–square–foot garage, the Zoning Officer denied the application.

Petitioners appealed to respondent Town of Arietta Zoning Board of Appeals (hereinafter the ZBA) asserting that the Zoning Officer's denial should be reversed, and a building permit should be issued, because (1) the proposed building is an accessory structure and not a principal building, and (2) even if the proposed building was considered a principal building, the Town Code does not limit the number of principal buildings per lot. In January 2015, the ZBA determined that petitioners' proposed building was a principal building and upheld the Zoning Officer's denial of the permit. When petitioners did not receive a written decision regarding the denial of their application, they filed a combined petition for CPLR article 78 relief and complaint seeking a declaratory judgment. Supreme Court remanded the matter based on the ZBA's failure to issue a written determination and the lack of clarity regarding what the ZBA had determined.

On remand, the ZBA limited the issue to whether the Zoning Officer made the correct decision when he denied petitioners' application to construct an accessory structure on their lot. Despite petitioners' disagreement with that characterization of the issue, the ZBA affirmed the Zoning Officer's original decision by a tie vote in December 2015. Petitioners then, at the ZBA's request, submitted another copy of their application with a revised cover sheet indicating that they sought a permit for a new building rather than an accessory

94 N.Y.S.3d 652

structure. The Zoning Officer immediately denied that application, explaining that their property was nonconforming due to being less than three acres and, according to a February 2015 amendment to article 11 of the Town Code, the proposed structure could not be built there.

169 A.D.3d 1233

Petitioners commenced this combined CPLR article 78 proceeding and declaratory judgment action seeking, among other things, annulment of the ZBA's December 2015 default decision and a declaration that petitioners' proposed pole barn is a permitted accessory structure, not a principal building, and that petitioners are entitled to a building permit. Petitioners administratively appealed the Zoning Officer's latest decision and, in May 2016, the ZBA affirmed the denial of petitioners' application to construct a new building. On stipulation, petitioners amended this combined action/proceeding to include a challenge to the May 2016 determination. Supreme Court held, among other things, that review was limited to the terms and scope of the application, the original application was solely for an accessory structure so the ZBA rationally limited its review in that regard, it was rational to conclude that the proposed building was a principal building rather than an accessory structure, and § 11.010 of the amended Town Code barred expansion on nonconforming lots. Petitioners appeal.

Regarding the ZBA's December 2015 determination, we must first ascertain what issues the ZBA addressed, or should have addressed. Supreme Court concluded that the Zoning Officer and the ZBA were limited to what petitioners sought in their application, namely, a permit to build an accessory structure (see Town Law § 267–b[1] ). Petitioners assert that, because lay applicants may not understand how to label their requests, zoning officers are not bound by the applicants' characterizations and should broadly review applications to determine whether the appropriate portion of a municipality's zoning ordinance is satisfied. Petitioners' suggestion is more charitable to lay applicants, and we most likely would not disapprove of its use should a zoning board choose to implement it. Nevertheless, we realize that such an approach could require zoning officers to speculate as to an applicant's unstated intent or to provide multi-layered responses addressing every possible alternative. The interpretation of Supreme Court and the ZBA – to limit the ZBA's review to exactly what was requested in the application – reasonably places the burden on the applicant to formulate a proper request. Therefore, our review is similarly limited to that narrow issue.

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