Edson v. Southold Town Zoning Bd. of Appeals

• Decision Date: 09 January 2013
• Citation: 102 A.D.3d 687,2013 N.Y. Slip Op. 00085,957 N.Y.S.2d 724
• Parties: In the Matter of Lewis EDSON, appellant, v. SOUTHOLD TOWN ZONING BOARD OF APPEALS, respondent.
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 687

957 N.Y.S.2d 724

2013 N.Y. Slip Op. 00085

In the Matter of Lewis EDSON, appellant,

v.SOUTHOLD TOWN ZONING BOARD OF APPEALS, respondent.

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

Jan. 9, 2013.

Wickham, Bressler, Gordon & Geasa, P.C., Mattituck, N.Y. (Eric J. Bressler of counsel), for appellant.

Smith, Finkelstein, Lundberg, Isler and Yakaboski, LLP, Riverhead, N.Y. (Frank A. Isler of counsel), for respondent.

WILLIAM F. MASTRO, J.P., DANIEL D. ANGIOLILLO, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In a proceeding pursuant to CPLR article 78 to review so much of a determination of the Zoning Board of Appeals of the Town of Southold dated August 19, 2010, as conditioned approval of the petitioner's application for a farm stand permit upon certain storage and seasonal operation limitations, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Asher, J.), dated June 30, 2011, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is reversed, on the law, without costs or disbursements, the petition is reinstated and granted, and the conditions in the determination prohibiting the storage of incidental accessory items that are not produced on the petitioner's farm within the 4,826 square-foot area of the subject partitioned building and limiting the operation of the farm stand to the period from Labor Day through March 31 are annulled.

The petitioner, the owner of a Christmas tree farm located in the Town of Southold, applied, pursuant to Southold Town Code (hereinafter the Town Code) § 72–4 et seq., to the Town's Building Department for a permit to construct and operate a farm stand in a portion of a building on his farm. After the Building Department denied the application, the petitioner appealed to the Zoning Board of Appeals of the Town of Southold (hereinafter the board), contending that by partitioning his 7,826 square-foot building, he could create a space for his proposed farm stand that did not exceed the area limitation of 3,000 square feet for farm stands as set forth in the Town Code ( see Southold Town Code §§ 72–6[A][2], 72–8). Moreover, he established that his property met the other Town Code requirements for the issuance of the permit, and that the percentage of the items offered for sale at the farm stand that would be grown by the petitioner would conform to the requirements of Town Code § 72–7. Following a public hearing, the board determined that the petitioner's proposal satisfied the requirements for the issuance of a farm stand permit, but attached conditions, inter alia, prohibiting incidental accessory items that are not produced on the farm from being stored within the remaining 4,826 square-foot area of the subject partitioned building, and limiting the operation of the farm stand to the period from Labor Day through March 31. The petitioner commenced this proceeding pursuant to CPLR article 78 to annul so much of the determination as imposed the aforementioned conditions. The Supreme Court denied the petition and dismissed the proceeding.

Contrary to the determination of the Supreme Court, ...