Posted by: Patricia Salkin | June 15, 2016

NY Appellate Court Upholds ZBA’s Determination that Nonconforming Campsite Nevertheless Complied with Applicable Zoning Ordinance

Petitioners owned property located next to a campground since the 1990s and claim that tents, recreational vehicles and other vehicles at the Camp are not properly screened from the public’s view and are eyesores. Petitioners also claimed that the noise from the camp is disturbing and that they have complained to the code enforcement officer alleging that the Camp is in violation of the Town’s zoning ordinances pertaining to setback and screening requirements and minimum square footage requirements for individual campsites. Specifically, the petitioners claimed that Camp violated screening ordinances by removing trees, thereby making RVs at the park visible from the highway and petitioners’ property. Further, the Petitioners told the Town that the RVs parked at the Camp violated setback requirements governing how far the RVs must be from public roads or the AuSable River, that the RVs erroneously used sites designated for tents and that individual campsites at the Camp did not meet the minimum square-foot-area requirements. The Code enforcement officer informed petitioners that the Camp was a nonconforming use, after which they filed an appeal with the Town Zoning Board of Appeals which was denied. Petitioners then brought an action claiming that ZBA failed to give the public notice of the June 2013 hearing as required by Town Law § 267–a (7), and the trial court remitted the matter to the ZBA for a new public hearing without addressing the merits of the claim. On a properly noticed rehearing the ZBA once again denied the claim. Petitioner appealed and the lower court dismissed. The appellate court upheld the dismissal.

The appellate court first noted that to the extent that the petition seeks to compel the code enforcement office to enforce the Town’s ordinances against the Camp, “it is in essence a request for relief in the form of mandamus (see CPLR 7803[1] ), ‘which does not lie to compel the performance ofsuch a discretionary function.’ ” (citations omitted). As to the merits, the Court found that evidence in the record demonstrates that the Camp has been functioning since the 1960s and predated the enactment of the zoning ordinances, making the operation of the Camp a permissible nonconforming use. However, the Court also concluded that the Camp complied with the zoning ordinance despite the fact it was not required to do so. The code enforcement officer demonstrated that measured the campsites and found they all met the minimum area requirements and he found no violation of screening requirements, and that the RVs complained of were owned by the campsite owner and the ordinance permitted the storage of personal RVs for no longer than 15 consecutive months. As to the petitioners’ last contention that RVs were impermissibly on tent campsites, the code enforcement officer found that because those tent campsites were equipped with water and electricity access, RVs could utilize those sites. The Court therefore concluded that the ZBA’s determination had a rational basis.

Cooney v. Town of Wilmington Zoning Bd. of Appeals,2016 WL 3190065 (NYAD 3 Dept. 6/9/2016).

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