Posted by: Patricia Salkin | November 4, 2018

NY Appellate Court Finds “Clearcutting” Decision by ZBA was Arbitrary and Lacked a Rational Basis

This post was authored by Matthew Loeser, Esq.

Petitioner owned an undeveloped 5.45–acre parcel of real property in the Town of Woodstock, Ulster County. Petitioner directed the removal of some brush and approximately 12 dead or diseased trees from a portion of his property that was above the ridge line and, thereby within a scenic overlay district. The Town’s code enforcement officer issued petitioner an “Order to Remedy Violation” alleging that petitioner violated the Town’s zoning law by clearcutting trees without a special use permit. Petitioner appealed the order to the Town of Woodstock Zoning Board of Appeals, which adopted a resolution sustaining the order, and found that petitioner had clear-cut trees without a special use permit in violation of the Town’s zoning law. Petitioner then commenced an Article 78 proceeding in Supreme Court, which granted the petition to annul the ZBA’s determination and remitted the matter for a rehearing based on the ZBA having reopened the public hearing without notice.


On appeal, petitioner argued that Supreme Court was required to transfer the proceeding to this Court. The court noted that Supreme Court is required to transfer a CPLR article 78 proceeding to the Appellate Division when a petition raises the issue of “whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.” Here, under the Town’s zoning law, clear-cutting is prohibited in that district. The dispute at issue was whether it was arbitrary or rational for the ZBA to conclude that petitioner engaged in clearcutting, as it was defined.


The court noted that nothing in the record indicated the exact number of trees that were cut, nor the number of trees of the specified size that were standing in the cleared area prior to or after the cutting. Without any of those figures, it was unclear how the ZBA could determine that 50% of the relevant trees had been removed. Additionally, the ZBA’s determination stated that the ZBA had access to a written report from the code enforcement officer, but no such report was in the record. As the ZBA’s determination upholding the order was arbitrary and lacked a rational basis, the court held the matter should be vacated, rather than be remitted for a rehearing.


Francello v Mendoza, et. Al., 2018 WL 5288878 (NYAD 3 Dept. 10/25/2018)


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