Posted by: Patricia Salkin | December 28, 2015

NY Appellate Court Affirms Planning Board’s Conditional Site Plan Approval

Petitioner was the owner of property located along the western shore of Lake George in the Town of Lake George, Warren County, upon which petitioner operated the Olympian Village Motel. Respondents Charles LaPlante and Veronika LaPlante owned an adjacent parcel of land to the north of petitioner’s property on which they operated a motel known as the Stepping Stones Resort. The LaPlantes applied for and were granted an area variance by the Town of Lake George Zoning Board of Appeals to make certain modifications relative to the height of the existing fence between these properties. The New York Supreme Court subsequently upheld the ZBA’s issuance of the subject variance, but remitted the matter for consideration and application of Code of the Town of Lake George § 175–23, which set forth the screening requirements for all structures located within 300 feet of the mean high-water mark of Lake George. On remittal, the ZBA concluded that application of the cited ordinance was a matter for respondent Town of Lake George Planning Board to resolve. The Planning Board, after expressly referencing the number of trees “up through the fence line”, conditionally approved the LaPlantes’ application for site plan review. The Supreme Court dismissed petitioner’s Article 78 proceeding and rejected petitioner’s interpretation of the screening requirements and found that the Planning Board’s determination was rational.

Petitioner initially argued that interpretation of the cited ordinance presents a purely legal question to which no deference to the Planning Board’s interpretation was required. Although the ordinance required that the view of the fence from the water be “filtered,” contrary to petitioner’s assertion, the court found that “filtered” was not the functional equivalent of “invisible.” Here, the Planning Board considered the arguments made by counsel for the respective parties, as well as the observations made by one of its members, who personally visited the site and made specific reference to the number of trees along the fence line. Thus, the record as a whole provided a rational basis for the Planning Board’s determination. Moreover, the staggered height of the fence, its positioning, together with the record evidence documenting the existence of similar fences in the immediate vicinity of petitioner’s property, further supported the holding that the Planning Board’s grant of conditional site plan approval was not arbitrary and capricious.

Edscott Realty Corp. v Town of Lake George, 2015 WL 8373316 (NYAD 3 Dept 12/10/2015)

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