Posted by: Patricia Salkin | February 19, 2015

NY Appellate Court Holds the Town Code did not prohibit Petitioner from Constructing Multiple One-Family Dwellings, Failure to Update Unofficial Zoning Map was not Fatal

Boni Enterprises, LLC and Country Club Acres, Inc. owned contiguous parcels of property in the Town of Clifton Park, Saratoga County. Petitioners submitted a revised application for site plan review to the Town of Clifton Park Planning Board, outlining a plan to build 74 one-family dwellings on the Boni parcel and 15 commercial buildings to be used as office buildings, warehouses and flex space on the CCA parcel. The Planning Board contended that it was unable to consider the application because respondent Steven M. Myers, the Town’s Zoning Enforcement Officer, believed that there were zoning issues with petitioners’ site plan. The Zoning Board of Appeals of the Town of Clifton Park upheld Myers’s interpretation which, determined that multiple one-family dwellings could not be constructed on Boni’s parcel. Petitioners commenced this combined proceeding pursuant to CPLR article 78 and action for declaratory judgment seeking review of the ZBA’s determination.

The court first noted that although courts generally grant deference to a zoning board of appeals regarding its determination, no deference is required if the issue is one of pure legal interpretation of the zoning law. Petitioners argued that the word “buildings” in the last sentence of § 208–33(B) of the Town Code includes one-family dwellings, leading to the conclusion that the Town Code permits them to build multiple dwellings on the Boni parcel as long as they comply with the density limitations. Despite this, the court found that the respondents were correct that the words building and dwelling were not synonymous and could not be used interchangeably, because a dwelling is a subset of the broader term building. Therefore, the plain language of the Town Code, strictly construed against the municipality, was interpreted as permitting multiple buildings, including one-family dwellings, on a single lot as long as they do not exceed the density limitations. For that reason, the court found that the ZBA’s determination must be annulled to the extent that it incorrectly interpreted that portion of the Town Code.

As to the issue of notice, even though the notice given here did not state that the proposed ordinance would repeal Local Law No. 2 (1970) of the Town of Clifton Park, the notice did state that the proposed ordinance would amend the zoning ordinance in relation to two business districts and identified the geographical area that would be affected, which included the CCA parcel. Accordingly, the record establishes that the Town gave the required notice that in general terms described the proposed ordinance, and the respondents were entitled to a declaration that Local Law No. 8 was properly enacted. Finally, as the record did not reflect that the Town has adopted an official zoning map, the failure to update its zoning map, which is unofficial and available merely as a reference tool, did not affect the validity of Local Law No. 8. The court therefore reversed the dismissal of the petitioner’s claims and held that the Town Code of the Town of Clifton Park did not prohibit petitioner Boni Enterprises, LLC from constructing multiple one-family dwellings on a single lot in the B–1 district

Boni Enterprises, LLC v. Zoning Bd. of Appeals of Town of Clifton Park, 2015 WL 176221 (N.Y. A.D. 3 Dept 1/15/2015)

The opinion can be accessed at:

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