Rex v. Zoning Bd. of Appeals of Town of Sennett

• Decision Date: 11 June 2021
• Docket Number: 175,CA 20-00448
• Citation: 195 A.D.3d 1398,145 N.Y.S.3d 492 (Mem)
• Parties: In the Matter of Dennis REX and Diane Rex, Petitioners-Appellants, v. ZONING BOARD OF APPEALS OF TOWN OF SENNETT, Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 1398

145 N.Y.S.3d 492 (Mem)

In the Matter of Dennis REX and Diane Rex, Petitioners-Appellants,

v.ZONING BOARD OF APPEALS OF TOWN OF SENNETT, Respondent-Respondent.

175

CA 20-00448

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

Entered: June 11, 2021

CAMARDO LAW FIRM, P.C., AUBURN (KEVIN M. COX OF COUNSEL), FOR PETITIONERS-APPELLANTS.

PRESENT: WHALEN, P.J., CARNI, NEMOYER, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioners commenced this CPLR article 78 proceeding challenging the determination of respondent denying their application for a special use permit to develop a mini-storage facility on property that was zoned agricultural/residential. In making its determination, respondent concluded that the proposed use did not "meet the goals of [the] comprehensive plan" and would "alter[ ] the essential character of the neighborhood." Supreme Court denied the petition, and petitioners appeal. We affirm.

The operation of a mini-storage facility is identified in the Town of Sennett's zoning ordinance as permitted upon the issuance of a special use permit (see Zoning Ordinance of the Town of Sennett § 504). The zoning ordinance provides that respondent "shall grant a Special Use Permit when it finds adequate evidence that a proposed use ... will meet all of the ... general requirements and standards listed [in the ordinance] for the proposed use" (§ 1509 [C] [3]), including that the proposed use must be "[i]n the best interest of the Town of Sennett, ... [s]uitable for the property in question and designed, constructed, operated and maintained so as to be in harmony with and appropriate in appearance with the existing intended character to the general vicinity" (§ 1509 [C] [3] [a], [b]; see generally Matter of Mobil Oil Corp. v. Oaks , 55 A.D.2d 809, 809, 390 N.Y.S.2d 276 [4th Dept. 1976] ). Furthermore, "[t]he stated standards in the ordinance guiding [respondent's] consideration of [the special use permit] application condition availability of a special exception, and compliance with those standards must be shown before any exception can be secured" ( Matter of Durante v. Town of New Paltz Zoning Bd. of Appeals , 90 A.D.2d 866, 867, 456 N.Y.S.2d 485 [3d Dept. 1982] ; see Matter of Wegmans Enters., Inc. v. Lansing , 72 N.Y.2d 1000, 1001-1002, 534 N.Y.S.2d 372, 530 N.E.2d 1292 [1988] ; Matter of Francis Dev. & Mgt. Co. v. Town of Clarence , 306 A.D.2d 880, 881-882, 761 N.Y.S.2d 760 [4th Dept. 2003] ).

Although the comprehensive plan for the Town of Sennett envisions some commercial development on land zoned agricultural/residential, "it also indicates that this type of commercial development should be restricted" to specific areas ( Francis Dev. & Mgt. Co. , 306 A.D.2d at 882, 761 N.Y.S.2d 760 ). As petitioners correctly concede, their proposed commercial development did not fall within the specified areas designated for such development. Inasmuch as the "[f]ailure to meet any one of the conditions set forth in the ordinance"...