Posted by: Patricia Salkin | June 10, 2019

NY Appellate Court Holds Zoning Officer was Required to Make a Determination as to Whether a Proposed Pole Barn was an Accessory Structure Before Deciding If It Constituted a Principle Building

This post was authored by Matthew Loeser, Esq.

Petitioners owned a 2.6–acre parcel located in a residential zone in the Town of Arietta, Hamilton County, which contained a 3,200–square–foot residence, a detached 1,200–square–foot garage and a boathouse. In August 2014, petitioners applied for a building permit to construct a 2,016–square–foot pole barn to be used for storage purposes. Respondent Mel LaScola, the Town’s Zoning Officer, determined the pole barn constituted a principal building as defined by the Town of Arietta Land Use Code due to it exceeding 1,250 square feet. Since petitioners’ property already contained a home as a principal building and a 1,200–square–foot garage, the Zoning Officer denied the application. The ZBA likewise determined that petitioners’ proposed building was a principal building and upheld the Zoning Officer’s denial of the permit. This case involves an appeal taken from an order of the Supreme Court, dismissing petitioners’ article 78 proceeding and action for declaratory judgment of plaintiff to review denial of building permit.


Upon review of the record, the court found that although the Zoning Officer’s conclusion that the proposed pole barn was a principal building implicitly held that it was not an accessory structure, he did not follow the proper pathway to reach that conclusion. While the Town Code’s definition of principal building contained a list, being on the list did not necessarily qualify the structure as a principal building. Specifically, the final sentence of the definition excluded all accessory structures. As such, the court found that it would be impossible to determine that a structure was a principal building without first determining whether it was an accessory structure. Accordingly, the court remitted the ZBA’s December 2015 determination to the Zoning Officer to render a determination regarding whether the proposed pole barn was an accessory structure under the former Town Code and, dependant on the answer to that question, whether a permit should be granted.


Lastly, the court reviewed the ZBA’s May 2016 determination affirming the Zoning Officer’s decision to deny petitioners’ application that identified the pole barn as a new building, rather than an accessory structure. Here, the Town Code had an express purpose to allow continuation of preexisting nonconforming uses such as petitioners’ residential use of their undersized lot, but also had an express purpose to bar the expansion or extension of nonconforming buildings and structures thereon. Accordingly, the court held the Supreme Court did not err in concluding that the ZBA had a rational basis to deny petitioners’ latest application, which would expand development of their nonconforming use.


Casey v. Town of Arietta Zoning Board of Appeals, 169 A.D.3d 1231 (3 Dept. 2019)

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