Posted by: Patricia Salkin | March 10, 2021

NY Appellate Court Upholds Denial of Special Use Permit to Operate Dog Kennel

This post was authored by Olena Botshtyen, Esq.

Edgar Muller, a petitioner in this case, owns 11 Siberian Huskies that he keeps on a 2.1-acre property in the town of Lewisboro. In July 2017, he applied to the Zoning Board of Appeals (“ZBA”) for a special use permit to operate a private dog kennel and a variance, since the town code only permits to operate a private kennel on lots of four acres or more and provides that the number of dogs over six months of age in such a kennel cannot exceed 10. The ZBA denied both applications. Muller then sought judgment to annul ZBA’s decision and determine that a town code provision § 220–23(D)(7), which only allowed him to keep 5 dogs over six months of age, is unconstitutional. The Supreme Court denied the petition and dismissed the action.

On appeal, the court reviewed two issues: whether the Supreme Court erred in affirming the ZBA decision denying the variance and the special use permit application and whether the Supreme Court properly dismissed the cause of action for a judgment declaring that a provision of a town code was unconstitutional.

On the first issue, the court concluded that the ZBA did not act illegally or arbitrary, it properly applied the required balancing test and determined that the kennel would have a negative effect on the character of the neighborhood or on the physical or environmental conditions. It therefore properly denied variance applications. In the absence of a variance, the proposed project did not meet the requirements for a special use permit, and thus ZBA did not act illegally when it denied the special use permit application. On the second issue, however, the court concluded that the Supreme Court should not have dismissed the cause of action for a judgment declaring that a provision of a town code was unconstitutional. The court stated that a summary procedure shall not apply to causes of action to recover damages or for declaratory relief and to declare a provision unconstitutional pursuant to CPLR article 78. A party may make a request for a summary procedure, but here in the absence of such a request, the Supreme Court erred in summarily disposing the cause of action. The court thus remitted the case to the Supreme Court for deciding on the remaining cause of action. Muller v Zoning Board of Appeals Town of Lewisboro, 2021 WL 900864 (NYAD 2 Dept. 3/10/2021)


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