Following a determination by the zoning board of appeals that petitioners were required to apply for a site plan review prior to erecting a fence on their property, the petitioners appealed. The appellate court concluded, that while the zoning board is typically entitled to deference in their interpretation of the local zoning law, such is not the case where as here, the Board’s determination was contrary to the “clear wording” of the zoning law. The applicable section of the zoning law provides that a site plan is required prior to the issuance of a zoning permit “except for single-family residences, accessory buildings or sues and agricultural buildings or uses.” The zoning law further provides that fences are permitted accessory uses in the zoning district wherein the subject property is located. Therefore, the Court concluded that a plain reading of the law reveals that petitioners are not required to undergo a site plan review. The Court dismissed the Board’s arguments that the fence should be subject to site plan review because its purpose is to change the flow of traffic on the subject property and because the fence was not included as part of the original site plan review of the property in 1998. The Court noted that the zoning law contemplates that a purpose of a fence may be to alter traffic flow and that no provision in the zoning law requires property owners to return to the planning board for site plan review each time they wish to add an accessory use.
Emmerling v. Town of Richmond Zoning Board of Appeals, 2009 WL 3930985 (N.Y.A.D. 4 Dept. 11/20/2009).
The opinion can be accessed at: http://www.courts.state.ny.us/ad4/court/Decisions/2009/11-20-09/PDF/1312.pdf
