Posted by: Patricia Salkin | January 12, 2013

NY Appellate Court Annuls Conditions Attached to Farm Stand Permit

The owner of a Christmas tree farm applied for and was granted a permit, subject to conditions, to construct and operate a farm stand in a portion of a building on the farm.  The zoning code limited farm stands to no  more than 3,000 square feet and the plaintiff asserted that he could partition his 7,826 square foot building  to create a space that did not exceed the limit, and that he could comply with all other requirements in the Code. Following a public hearing, the board granted the farm stand permit subject to  conditions that prohibited the storage of accessory items that are not produced on the farm from being stored within the remaining 4,826 square foot area, and limiting the operation of the farm stand to the period of Labor Day through March 31st.   The plaintiff appealed and the trial court upheld the conditions but the appellate court reversed.  The Court held that while the board could have interpreted the Code to require all farm stand inventory be stored within the 3,000 feet, it did not have authority to condition its approval on the arbitrary distinction between the “types of inventory offered for sale by, by permitting the storage of farm stand inventory produced on the petitioner’s farm in the partitioned area adjacent to the proposed farm stand, while prohibiting the similar storage of incidental accessory items that are not produced on the petitioner’s farm.”  Further, the Court found no authority in the local code for the seasonal limitation.

Edson v Southold Town Zoning Board of Appeals, 2013 WL 86318 (N.Y.A.D. 2 Dept. 1/9/2013)

The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2013/2013_00085.htm


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