IN RE: William MAY and Rose J. May

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: William MAY and Rose J. May, Petitioners-Appellants, v. TOWN OF LAFAYETTE ZONING BOARD OF APPEALS, Town of Lafayette and Robert R. Lamson, in His Official Capacity as Town of Lafayette Code Enforcement Officer, Respondents-Respondents.

Decided: September 28, 2007

PRESENT:  GORSKI, J.P., SMITH, CENTRA, FAHEY, AND GREEN, JJ. Dirk J. Oudemool, Syracuse, for Petitioners-Appellants. Costello, Cooney & Fearon, PLLC, Syracuse (John R. Langey of Counsel), for Respondents-Respondents.

Petitioners commenced this CPLR article 78 proceeding seeking to annul that part of the determination of respondent Town of Lafayette Zoning Board of Appeals (ZBA) conditioning its approval of the application of petitioners for a “Specific Permit” (hereafter, permit) to use their property as a camp on their removal of a 38-foot travel trailer from their property.   Supreme Court determined that the ZBA's determination, made after a lengthy public hearing, was rational and dismissed the petition.   We affirm.

The scope of the court's review of the ZBA's determination is limited to determining whether the ZBA's action was illegal, arbitrary, or an abuse of discretion (see Matter of Village of Honeoye Falls v. Town of Mendon Zoning Bd. of Appeals, 237 A.D.2d 929, 654 N.Y.S.2d 534;  see also Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 308, 746 N.Y.S.2d 667, 774 N.E.2d 732).   Where “the determination of the ZBA has a rational basis and is supported by substantial evidence, it is entitled to great deference and must be sustained” (Matter of Welsh v. Town of Amherst Zoning Bd. of Appeals, 270 A.D.2d 844, 844, 706 N.Y.S.2d 281;  see Matter of Farrell v. Johnson, 266 A.D.2d 873, 697 N.Y.S.2d 900;  see also Matter of Lloyd v. Town of Greece Zoning Bd. of Appeals [Appeal No. 1], 292 A.D.2d 818, 819, 739 N.Y.S.2d 303, lv. denied in part and dismissed in part 98 N.Y.2d 691, 747 N.Y.S.2d 407, 775 N.E.2d 1286).

Here, respondent Town of Lafayette's zoning ordinance allows property zoned “AR,” i.e., Agricultural-Residential, to be used for camping purposes upon the issuance of a permit.   The zoning ordinance also allows the ZBA to impose conditions upon the granting of a permit to ensure that the approved use is “[a]ppropriate for the particular lot and location[,] ․ [n]ot unreasonably detrimental to neighboring properties, areas and districts [and c]onsistent with an orderly and appropriate development of neighboring properties, areas, and districts” (Town of Lafayette Zoning Ordinance, art. IV, § B).  Here, it is undisputed that petitioners' trailer is not licensed, registered, or insured.   Petitioners' trailer is also the only one in the neighborhood and, in the opinion of the ZBA, its presence on petitioners' small parcel “overwhelms the site and creates a feature which is out of character with the surrounding camps and homes in the surrounding neighborhood.”   We thus conclude that the ZBA's determination conditionally approving the permit is supported by substantial evidence in the record and has a rational basis.   The record does not support petitioners' further contention that the condition requiring the removal of the trailer was related to the “ ‘identity of the applicant[s]’ ” (matteR of st. oNge V. donovAn, 71 n.y.2D 507, 515, 527 n.y.s.2D 721, 522 N.E.2d 1019).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: