Posted by: Patricia Salkin | July 21, 2016

NY Appellate Court Upholds Decision that Owner’s Use of Property as Venue for Large Social Gatherings was Neither Subordinate nor Customarily Incidental to Primary Single-Family Residential Use

Petitioner owned a parcel of real property overlooking Lake George in the Town of Bolton, Warren County, known as Highlands Castle. Beginning in 2010, petitioner advertised Highlands Castle on the Internet as a venue for weddings, corporate meetings, social gatherings and other special events. In its online media, the property was described as a “perfect setting for a special gathering with family and friends” or “any other meaningful ‘experience’ you can envision.” In response to complaints from neighboring homeowners regarding petitioner’s use of the property, the Town’s Zoning Administrator issued a determination in March 2012 finding that petitioner’s rental activities did not violate the Town Code. An appeal ensued and, following a public hearing in June 2012, respondent Zoning Board of Appeals of the Town of Bolton overturned the determination. Petitioner thereafter commenced this proceeding seeking to annul the ZBA’s determination.

The ZBA found that, given the manner in which petitioner utilized and marketed Highlands Castle as a venue for weddings and other large social gatherings, the challenged use was neither subordinate nor customarily incidental to the primary single-family residential use of the property. The marketing of Highlands Castle evinced a clear intent to target a rental audience that sought more than just residential use of the property, and no evidence was presented that Highlands Castle had ever been rented out for use as a single-family residence. Furthermore, during the public hearing, neighboring property owners testified that events held at Highlands Castle generated increased traffic, created overcrowded private roadways and often involved amplified music and announcements, which interfered with their enjoyment of their own nearby homes. Accordingly, the court found the ZBA’s determination to be neither irrational nor unreasonable.

Lavender v Zoning Board of Appeals of Town of Bolton, 2016 WL 3919056 (NYAD 3 Dept 7/21/016)

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