Posted by: Patricia Salkin | September 15, 2018

NY Appellate Court Explains that Planning Board Should Have Referred Ambiguous Ordinance to Zoning Board Prior to Granting Special Permit

This post was authored by Amy Lavine, Esq. 

A New York appellate court case decided in May held that a planning board’s decision approving a special permit was properly annulled where there were underlying ambiguities in the zoning ordinance. After those ambiguities were resolved by the zoning board, the court found that the planning board appropriately reconsidered the application and granted the special permit.

The case at issue involved a proposed vacation resort development in the Town of Shandaken. Following a lengthy environmental review, the planning board granted the developer’s application for a special use permit and site plan approval, as required under the zoning ordinance for vacation resorts. Catskill Heritage Alliance challenged the planning board’s decision, however, and a judgment was issued in 2016 that annulled the special permit and site plan approvals and remitted the case to the zoning board to resolve ambiguities regarding the permissibility of certain residential structures. The zoning board subsequently determined that detached duplexes and multiple-unit residences included in the project were permitted “lodges,” and the planning board then reconsidered the project and issued a second special permit and site plan approval. Catskill Heritage Alliance then filed a second lawsuit challenging both the zoning board’s decision and the second planning board approvals.

The court first found that Catskill Heritage Alliance had stated a valid claim in its first lawsuit because if there were ambiguities in the zoning code, the planning board should have referred them to the zoning board before making a decision on the special permit application. The court also agreed with Catskill Heritage Alliance that the zoning provisions regarding detached duplexes and multiple-unit buildings were ambiguous, as they could have been classified as either permitted “lodges” or prohibited mulitfamily residences, and because an interpretation of the zoning code was needed, it was proper to annul the approval of the first special permit decision and remit the matter to the zoning board.

The court next addressed the zoning board’s decision upon remittal and found that was reasonable, as it had determined that the structures would be “lodges” based on the fact that they were intended for transient, rather than permanent, occupancy. Based on this decision, the court then affirmed the planning board’s second special permit approval, as it had “rationally determined ‘that the proposed project “compli[ed] with any legislatively imposed conditions on an otherwise permitted use”‘ so as to warrant the issuance of a special use permit and site plan approval.”

The court concluded by noting that Catskill Heritage Alliance’s related claims were without merit. To the extent that it alleged Open Meetings Law violations, it failed to show sufficient “good cause” to warrant reversal of the zoning board’s decision. As to its argument that the zoning board’s chairperson had a conflict of interest, the court explained that he was not disqualified merely because he had performed logging work on the property many years before Crossroads’ project was proposed.

Matter of Catskill Heritage Alliance, Inc. v Crossroads Ventures, LLC, 161 A.D.3d 1413 (N.Y. App. Div. 3d Dept. 5/17/18)

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