Posted by: Patricia Salkin | October 25, 2019

NY Appellate Court Finds Breakwall Did Not Fall Within the Definition of Fences Under the Town Code

This post was authored by Matthew Loeser, Esq.
Petitioner commenced this hybrid CPLR article 78 proceeding seeking to annul the determination of respondent Town of Geneva Zoning Board of Appeals (“ZBA”), which affirmed in part the order to remedy issued by respondent-defendant Floyd Kofahl, as Code Enforcement Officer of respondent-defendant Town of Geneva, that petitioner’s property was in violation of certain provisions of the Town of Geneva Code. The ZBA determined that the subject breakwall, septic system retaining wall, and north side retaining wall constructed on petitioner’s lakefront property constituted fences as defined by Code former § 77–1, and that petitioner’s property was in violation of the permitting and other requirements of the Code attendant to the status of the walls as fences. In appeal No. 1, petitioner appealed from a judgment that dismissed the first cause of action to annul the ZBA’s determination and to vacate the order to remedy. In appeal No. 2, petitioner appealed from an order that denied petitioner’s motion for leave to renew the first cause of action.
The primary issue in this case was whether the aforementioned walls fell within the definition of fences under the Code. In addressing this issue, the court first noted that deference to the ZBA was not required because “the issue posed is susceptible to resolution as a matter of law by interpretation of the Code terms.” Code former § 77–1 defined the term “fence” as “any structure, regardless of composition, that is erected or maintained for the purpose of enclosing a piece of land or dividing a piece of land into distinct portions.”
Here, the undisputed record evidence reflected that the walls did not fall within the plain meaning of fences as defined by Code former § 77–1, since they were not erected for the purpose of enclosing or dividing a piece of land. Here, the breakwall was constructed to maintain the shoreline of the lake in light of the future construction of a house on petitioner’s property, the septic system retaining wall was constructed to secure the integrity of the proposed leach field, and the north side retaining wall was constructed to provide better drainage and avoid soil erosion. Accordingly, the court held that the ZBA’s determination affirming the order to remedy with respect to the violations of the Code lacked a rational basis and was not supported by substantial evidence. Due to the court’s reversal in appeal No. 1, the appeal in appeal No. 2 was found moot.
Fox v. Town of Geneva Zoning Board of Appeals, 2019 WL 4892830 (NYAD 4 Dept. 10/4/2019)


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Categories

%d bloggers like this: