IN RE: CATSKILL HERITAGE ALLIANCE

Reset A A Font size: Print

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

IN RE: CATSKILL HERITAGE ALLIANCE, INC., Appellant–Respondent, v. CROSSROADS VENTURES, LLC, Respondent–Appellant,

Town of Shandaken Zoning Board of Appeals, et al., Respondents. (Proceeding No. 1.) IN RE: Catskill Heritage Alliance, Inc., Appellant, v. Town of Shandaken Zoning Board of Appeals, et al., Respondents. (Proceeding No. 2.)

525285

Decided: May 17, 2018

Before: Garry, P.J., Egan Jr., Devine, Aarons and Rumsey, JJ. Braymer Law, PLLC, Glens Falls (Claudia K. Braymer of counsel) and Caffry & Flower, Glens Falls (John W. Caffry of counsel), for appellant-respondent, and appellant. Whiteman Osterman & Hanna LLP, Albany (John J. Henry of counsel), for respondent-appellant. McCabe & Mack, LLP, Poughkeepsie (Daniel C. Stafford of counsel), for respondents.

MEMORANDUM AND ORDER

(1) Cross appeal from a judgment of the Supreme Court (Mott, J.), entered October 17, 2016 in Ulster County, which partially granted petitioner's application, in proceeding No. 1 pursuant to CPLR article 78, to annul a determination of respondent Town of Shandaken Planning Board issuing permits to respondent Crossroads Ventures, LLC, and (2) appeal from a judgment of said court, entered July 20, 2017 in Ulster County, which dismissed petitioner's application, in proceeding No. 2 pursuant to CPLR article 78, to review a determination of respondent Town of Shandaken Planning Board issuing a special use permit to respondent Crossroads Ventures, LLC.

Respondent Crossroads Ventures, LLC has long endeavored to build a vacation resort partially located in the Town of Shandaken, Ulster County.  As zoned by chapter 116 of the Code of the Town of Shandaken (hereinafter zoning code), a vacation resort is allowed in the area with a special use permit and site plan approval from respondent Town of Shandaken Planning Board.  “Vacation resort” is not defined in the zoning code and, in 2000, Crossroads requested an interpretation and definition of the term to determine what uses would be allowed as part of one.  Respondent Town of Shandaken Zoning Board of Appeals (hereinafter ZBA) replied by analogizing a vacation resort to a “[h]otel or motel or lodge development” where “[a]ll uses integral to the hotel, motel or lodge development ․ [and] clearly accessory to” it, as well as other uses allowed as of right or by permission in the area, were allowed (Code of Town of Shandaken § 116–40[O] ).  The project thereafter underwent a prolonged assessment under the State Environmental Quality Review Act (see ECL art 8), during which a scaled-back, but still quite substantial, plan emerged (Matter of Catskill Heritage Alliance, Inc. v. New York State Dept. of Envtl. Conservation, ––– A.D.3d ––––, ––––, ––– N.Y.S.3d ––––, 2018 N.Y. Slip Op. 02516, *2, 2018 WL 1747804 [2018] ).  The project now has a variety of aspects that include two hotels, a conference center, community centers and additional lodging scattered among several duplexes and multiple-unit buildings.

In 2013, as the environmental review wended its way toward a conclusion, Crossroads applied to the Planning Board for a special use permit and site plan review.  The Planning Board issued the permit and approved the site plan with conditions, prompting petitioner to commence proceeding No. 1. Following unsuccessful motions by Crossroads and the Planning Board to dismiss the petition, Supreme Court issued an October 2016 judgment finding that the Planning Board properly determined that non-habitational structures fell within the “clear definition of [permissible] accessory uses” to the resort, but improperly resolved an ambiguity in the zoning code as to whether the detached duplexes and multiple-unit buildings were permitted uses in the area.  Supreme Court accordingly granted the petition in part, annulled the Planning Board's determination and remitted so that the ZBA could address the propriety of the residential structures prior to a new determination by the Planning Board.

Upon remittal, the ZBA interpreted the zoning code and made clear that the detached residential units were permitted “lodges.”  The Planning Board again granted Crossroads' application, issued a special use permit and approved the site plan with conditions.  Petitioner then commenced proceeding No. 2 to challenge the ZBA's determination and the Planning Board's new approval which, following joinder of issue, Supreme Court dismissed in a July 2017 judgment.  Petitioner and Crossroads cross-appeal from the October 2016 judgment, and petitioner appeals from the July 2017 judgment.

Crossroads first contends that Supreme Court should have granted its motion to dismiss proceeding No. 1.1 It is the ZBA, not the Planning Board, with the authority to interpret the zoning code (see Code of Town of Shandaken § 116–68[A];  Matter of Woodland Community Assn. v. Planning Bd. of Town of Shandaken, 52 A.D.3d 991, 993, 860 N.Y.S.2d 653 [2008];  Matter of Swantz v. Planning Bd. of Vil. of Cobleskill, 34 A.D.3d 1159, 1160, 824 N.Y.S.2d 781 [2006] ).  When Crossroads applied to the Planning Board for a special use permit and site plan review, petitioner argued that many of the proposed structures were prohibited under the zoning code.  To the extent that there were pertinent ambiguities in the zoning code, the Planning Board was obliged to request an interpretation from the ZBA before rendering its determination (see Code of Town of Shandaken § 116–68[A][2][a];  Matter of Woodland Community Assn. v. Planning Bd. of Town of Shandaken, 52 A.D.3d at 993, 860 N.Y.S.2d 653).  The petition in proceeding No. 1 alleged that some of the proposed uses were prohibited—a claim that, if the zoning code was unclear, would need to be first dealt with by the ZBA—and that the Planning Board lacked authority to approve any application containing them absent a use variance issued by the ZBA. Therefore, affording the petition a liberal construction, accepting its allegations as true and providing petitioner with every favorable inference, it stated a claim (see Nomura Home Equity Loan, Inc., Series 2006–FM2 v. Nomura Credit & Capital, Inc., 30 N.Y.3d 572, 582, 69 N.Y.S.3d 520, 92 N.E.3d 743 [2017] ).

Turning to the merits of that claim, in light of the ZBA's 2000 interpretation of the zoning code, the Planning Board rationally determined that the conference center and community centers were “integral” and “clearly accessory” to the overall project and permitted under the zoning code (Code of Town of Shandaken §§ 116–4[B];  116–40[O][4], [5] ).  The 2000 ZBA interpretation did not offer an opinion regarding the detached duplexes and multiple-unit buildings, a problem in that they were not accessory structures due to their status as habitations (see Code of Town of Shandaken § 116–4[B] ) and could be viewed as either permitted lodges or prohibited new multifamily dwellings under the zoning code (see Code of Town of Shandaken §§ 116–10, 116–40[A][1];  [O] ).  An interpretation of the zoning code was needed on that point and, rather than devising its own interpretation, Supreme Court properly annulled the Planning Board's determination and remitted so that the ZBA could provide one (see Town Law § 267–b;  Matter of Woodland Community Assn. v. Planning Bd. of Town of Shandaken, 52 A.D.3d at 993, 860 N.Y.S.2d 653;  Matter of Jordan's Partners v. Goehringer, 204 A.D.2d 453, 454–455, 611 N.Y.S.2d 626 [1994] ).

Turning to proceeding No. 2, the ZBA considered, upon remittal, how to view the detached residential buildings under the zoning code.  Inasmuch as the interpretation that followed was rendered upon the facts of Crossroads' proposal and was not an “issue ․ of pure legal interpretation,” it “is afforded deference and will only be disturbed if irrational or unreasonable” (Matter of Lumberjack Pass Amusements, LLC v. Town of Queensbury Zoning Bd. of Appeals, 145 A.D.3d 1144, 1145, 42 N.Y.S.3d 473 [2016] [internal quotation marks and citation omitted];  accord Matter of Blanchfield v. Town of Hoosick, 149 A.D.3d 1380, 1382, 53 N.Y.S.3d 226 [2017] ).  The zoning code defines multiple dwellings as structures with “three or more dwelling units,” but states that rooms in “[a] boardinghouse, dormitory, motel, inn ․ or other similar building” do not constitute dwelling units (Code of Town of Shandaken § 116–4[B] ).  A new multiple dwelling is prohibited in the project area, but a lodge development is not.  A lodge is not defined in the zoning code, but the ZBA pointed out that a lodge is commonly defined as a transient residence, such as an inn or similar building having rooms that are excluded from the zoning code's definition of a dwelling unit contained in a multiple dwelling.  The permanence of the residency is key, in other words, and the ZBA therefore defined a “lodge” as including structures “containing one or more units of lodging and sleeping accommodations for transient occupancy in connection with the special permitted use of hotel or lodge development and/or vacation resort held under common ownership” so long as the users had a primary residence elsewhere.  The ZBA observed that the proposed buildings were intended for transient occupancy—either as a rental or as a timeshare purchase—and explicitly concluded that they were permitted lodges as a result.  The ZBA's interpretation was entirely rational and will not be disturbed.  It follows that the Planning Board, with the 2000 and 2017 ZBA interpretations of the zoning code in hand, rationally determined “that the proposed project ‘compli [ed] with any legislatively imposed conditions on an otherwise permitted use’ ” so as to warrant the issuance of a special use permit and site plan approval (Matter of Kinderhook Dev., LLC v. City of Gloversville Planning Bd., 88 A.D.3d 1207, 1209, 931 N.Y.S.2d 447 [2011], lv denied 18 N.Y.3d 805, 2012 WL 400025 [2012], quoting Matter of Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 98 N.Y.2d 190, 195, 746 N.Y.S.2d 662, 774 N.E.2d 727 [2002];  see Matter of Frigault v. Town of Richfield Planning Bd., 128 A.D.3d 1232, 1234, 9 N.Y.S.3d 708 [2015], lv denied 26 N.Y.3d 911, 2015 WL 7288988 [2015] ).

Petitioner's remaining contentions do not require extended discussion.  Assuming without deciding that petitioner was persuasive in arguing that the ZBA violated the Open Meetings Law (see Public Officers Law art 7) in the leadup to issuing its 2017 interpretation, petitioner has not demonstrated “good cause warranting the exercise of our discretionary power to invalidate the ZBA's determination” (Matter of Oakwood Prop. Mgt., LLC v. Town of Brunswick, 103 A.D.3d 1067, 1070, 960 N.Y.S.2d 535 [2013], lv denied 21 N.Y.3d 853, 2013 WL 1800446 [2013] ).  Lastly, the chair of the ZBA was not disqualified from participating in rendering that interpretation due to the fact that he performed logging and plowing work on the project property that predated the proposed project by decades and had no connection to the project itself (see Matter of Heustis v. Town of Ticonderoga Planning Bd., 11 A.D.3d 868, 869–870, 784 N.Y.S.2d 187 [2004] ).  Petitioner's remaining contentions have been examined and found to lack merit.

ORDERED that the judgments are affirmed, without costs.

FOOTNOTES

1.   Crossroads' appeal from the final judgment in proceeding No. 1 brings up for review the earlier order denying its motion to dismiss (see Matter ofSaratoga Lake Protection & Improvement Dist. v. Department of Pub. Works of City of Saratoga Springs, 46 A.D.3d 979, 981 n 1, 846 N.Y.S.2d 786 [2007], lv denied 10 N.Y.3d 706, 857 N.Y.S.2d 38, 886 N.E.2d 803 [2008] ).

Devine, J.

Garry, P.J., Egan Jr., Aarons and Rumsey, JJ., concur.