Posted by: Patricia Salkin | May 24, 2017

NY Appellate Court Reverses Decision to Deny a Special Use Permit for Dog Training Business

Petitioner was the owner of property in the Town of Hoosick, Rensselaer County on which she operated a dog training and handling business. Following a noise complaint from a neighbor, the Code Enforcement Officer of the Town of Hoosick determined that petitioner’s use of her property was in violation of the Town’s Land Use Law and that a special use permit and site plan approval were required. Petitioner submitted an application for a special use permit and for site plan approval and, citing the current and foreseeable impact of dog noise on the neighbors, the ZBA denied petitioner’s applications. Petitioner then commenced a CPLR article 78 proceeding. The Supreme Court dismissed the petition, and petitioner appealed.

Petitioner first argued that the Supreme Court erred when it determined that she was required to obtain both a special use permit and site plan approval. Specifically, she claimed that no special use permit was required because her business consisted of the operation of a boarding kennel and breeding kennel, which uses were permitted by right. Her application for site plan approval described the intended use as “training + handling center for show dogs,” as well as the short environmental assessment form that she submitted. The court found that since the petitioner’s use of the property did not fit within the definitions of boarding kennel or breeding kennel, the ZBA properly determined that she was required to obtain a special use permit.

Petitioner next claimed that site plan review was not required since the business use of the property began in 2006, before the 2009 enactment of the Land Use Law and the enactment of the 2014 version of a site plan review local law. The court found that petitioner’s argument was without merit, since to have a protected interest at the time of enactment of the Land Use Law in 2009, petitioner had to have received site plan approval pursuant to the 2001 Site Plan Review Law. Here, petitioner never applied for or received site plan approval for her business use, so her use was not a lawful nonconforming use at the time of the enactment of the Land Use Law in 2009.

In reaching its decision, the ZBA found that petitioner failed to offer measures that would sufficiently mitigate the dog noise impact from her business; however, petitioner offered scientific measurement of the noise level and there was no other objective measure of the noise offered at the public hearing. Additionally, the court found the neighbor’s recording of the noise was subject to an unreliable interpretation of its level based upon the ability to control the volume of the recording, and reliance on the recording would be unreasonable. Without evidence rebutting petitioner’s offer of her measurement of the sound level and her offer of measures to address any noise concerns, the court found that there was no basis in the record to determine that petitioner did not meet the conditions imposed by the Land Use Law. Accordingly, the judgment was reversed and the matter was remitted to the Zoning Board of Appeals of the Town of Hoosick to grant a special use permit and site plan approval to petitioner.

Blanchfield v Town of Hoosick, 2017 WL 101152 (NYAD 3 Dept. 4/20/2017)


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