Posted by: Patricia Salkin | March 29, 2019

NY Appellate Court Affirms Planning Board Approval of Brewery Addition to Golf Course Bar and Restaurant

This post was authored by Amy Lavine, Esq.

The Fairways of Halfmoon operated a golf course with a pro shop, clubhouse, restaurant, bar, and banquet house. In 2017, Fairways applied for an amendment to its site plan and special permit to allow an addition to its bar and restaurant that would be operated as a brewpub. Several nearby property owners, including the petitioners, complained that a brewpub wasn’t a permitted use in the Agriculture-Residence district and that it would have negative effects on the character of the neighborhood. The planning board granted Fairways’ application despite these objections, however, and the petitioners then commenced legal challenges seeking to overturn this decision.

At the outset, the court found that the case was neither moot nor barred by laches. Fairways had argued for dismissal on these grounds, due to the fact that that the brewpub addition was substantially completed by the time the petitioners’ appeal was heard. The court found that substantial completion was insufficient to render the petitioners’ claims moot, however, since Fairways could still be ordered to remove the addition or it could be enjoined from using the space as a brewpub. As to laches, the court found no basis to dismiss the petitioners’ claims because they promptly pursued both administrative and judicial review, and thus there was no evidence of any “neglect in promptly asserting a claim” so as to justify laches.

The court next addressed whether the planning board complied with the State Environmental Quality Review Act. During the application process, the planning board had characterized the’ proposed addition as a type II action not requiring environmental review, but in its resolution approving the project the planning board called it an unlisted action and issued a negative declaration instead. The court noted that this may have been a clerical error, but in any case the planning board sufficiently reviewed the proposal’s environmental impacts and received input from the public and interested agencies. This review determined that the project would have minimal impacts and that the impacts would be limited to the already disturbed areas on the golf course property, and the proposal itself addressed impacts related to parking and waste disposal issues. In short, the court found that the planning board’s negative declaration was reasonable, even if it might have provided a more reasoned elaboration for the basis of its determination.

The petitioners’ claims regarding the zoning ordinance focused on the prohibition of “commercial facilities or amusement parks” in the Agriculture-Residence district. The court noted, however, that the ordinance did permit “[p]rivate or public recreation or playground area[s], golf club[s], country club[s], or other open recreation uses” as special uses, and that Fairways already operated a restaurant, bar, and banquet house under the terms of a special permit it received in the 1990s. Moreover, the zoning code allowed special uses for clubhouse bars that were accessory to golf clubs, and Fairways had indicated that its brewery would be limited to on-site retail sales under the terms of its restaurant brewer’s license. Accordingly, the court found that the planning board acted reasonably in deciding to approve the project, and it was under no obligation to refer the matter to the zoning board for a determination as to whether the brewpub would be a prohibited “commercial facility.”

In addition to their claims against the planning board, the petitioners had also written to the town code enforcement director after Fairways’ application was granted. Their letter asked, as a general matter, whether a brewpub could be built in the Agriculture-Residence district in accordance with the town building code. The code enforcement director explained in response that the building code did not regulate where buildings could be constructed and noted that zoning issues should be addressed to the planning board. This interpretation was later upheld by the zoning board, and the court held on appeal that it was unnecessary to address this aspect of the petitioners’ challenge. The court emphasized that the zoning board’s determination “arose from a vague question” about “a generic brewpub,” and the determination also had no practical impact on the planning board’s prior approval or Fairways’ subsequent request for a building permit. In light of these considerations, the matter was moot and a ruling from the court would have amounted to an improper advisory opinion.

Micklas v Town of Halfmoon Planning Bd., 2019 WL 1389230 (NYAD 3 dept. 3/28/2019).

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