A Dutchess County Planning Federation eNewsletter
July 2014
Case Law Review: Zoning Law Interpretations
Guest Author: Victoria L. Polidoro, Esq., Rodenhausen Chale LLP
Even the best laid plans of cities, towns and villages can go astray. Two recent
decisions by the Appellate Division, Third Department, highlight the need for
specificity in zoning laws and remind municipal officials that ambiguity in a zoning law
must be resolved in favor of the property owner.
The Role of the Zoning Board of Appeals
When a property owner receives an adverse decision from a municipal Code
Enforcement Officer, the owner may appeal the decision to the Zoning Board of
Appeals (“ZBA”). Section 267-b(1) of the Town Law, and its counterparts in the
Village and City Law, provide the ZBA with the authority to “reverse or affirm, wholly
or partly, or [to] modify the order, requirement, decision, interpretation or
determination appealed from” and to make “such order, requirement, decision,
interpretation or determination as in its opinion ought to have been made…” The ZBA
must review the provisions of the Zoning Law and interpret the intent of the
challenged provision.
The Rules of ZBA Interpretation
Zoning laws generally do not provide ZBAs with guidelines for interpreting the law.
Instead, the ZBA is governed by rules of statutory interpretation which have been
developed through case law. There are different rules for different situations, but
some of the more commonly applied rules are:

A statute or ordinance is to be construed as a whole, reading all of its parts
together to determine the legislative intent and to avoid rendering any of its
language superfluous. (Friedman v. Connecticut General Life Insurance Co., 9
NY3d 105 (2007))

Unambiguous language is to be construed to “give effect to its plain meaning”.
(Tall Trees Const. Corp. v. Zoning Board of Appeals of Town of Huntington, 97
NY2d 86, (2001))

Zoning regulations must be strictly construed against the municipality which has
enacted and seeks to enforce them, and any ambiguity in the language used must
be resolved in favor of the property owner. (Hess Realty Corp. v. Planning
Comm’n of the Town of Rotterdam, 198 AD2d 588 (3d Dept. 1993))
What is an Auditorium?
In the matter of Albany Basketball & Sports Corp. v. City of Albany, the petitioner is
the operator of a former armory located in the City’s commercial district, in which an
“auditorium” is a permitted use. After several events in October 2012, the City issued
cease and desist orders alleging that the events held at the armory were not
permitted uses under the Zoning Law. In accordance with the City’s Zoning Law, the
petitioner submitted an application to the ZBA for an interpretation of what
constitutes an auditorium use. The petitioner was specifically seeking approval to hold
“musical entertainment events, including those where the audience was standing for
the entire event.”
After a public hearing, the ZBA
determined that the use of the facility
for “rave party, nightclub, dance club
or other similar event” was excluded
from an auditorium use and therefore
not permitted. The ZBA’s decision
turned on its interpretation of the term
“auditorium,” which was not defined in
the Zoning Law. The ZBA consulted
several dictionaries to determine the
word’s ordinary meaning, ultimately
determining that seating is required in
an auditorium use. In doing so, the
ZBA disregarded alternative broader
definitions – set forth in the same
dictionaries – which did not require
fixed seating.
Former Washington Avenue Armory, Albany NY, now a
concert and sports arena. (Photo credit: Relentless Awareness)
The petitioner filed an Article 78 proceeding with the Supreme Court challenging the
ZBA’s decision. The Court dismissed the action. On appeal, the Appellate Division
reversed, finding the ZBA’s decision to be arbitrary and capricious. The appeals court
noted the conflict between the differing definitions and reiterated the rule that any
ambiguity must be resolved in favor of the landowner.
Are Exotic Animals a Home Occupation?
The matter of Salton v. Town of Mayfield Zoning Board of Appeals involves a
challenge by a homeowner to the Town’s application of its home occupation
provisions and the ZBA’s determination that the petitioner was conducting an
unauthorized home occupation. The petitioner kept exotic animals on his property,
where he also resided. The animals included three tigers and two leopards. Pursuant
to his federal and state licenses, the petitioner was required to exhibit the animals,
which he did by charging a fee for visitors to view the animals on his property.
The Code Enforcement Officer informed the petitioner that he was operating an
unauthorized home occupation on his property. The Petitioner appealed the decision
to the ZBA, which upheld it, and then to the Supreme Court, which dismissed
petitioner’s request.
In reviewing the petition, the Appellate Division reiterated that zoning regulations
must be strictly construed against the municipality in favor of the land owner and
undertook a review of the applicable provisions of the Zoning Law.
The Court reviewed the Town’s definition of home occupation, which is defined as
“businesses where the owner resides on the property and where the activities of the
business are conducted inside the residence, a legally constructed accessory building,
or at off-site locations.” The petitioner attempted to argue that the use of the
property for the keeping of exotic animals was not commercial, and thus not a
regulated home occupation. The Court was not convinced based on a review of the
petitioner’s license application, which contained his business name and his business
card, which listed prices to view the animals.
Plan On It, July 2014 Issue 2 The Court was further unmoved by the
petitioner’s argument that the use was
not a home occupation because it
occurred in outdoor cages and not in an
accessory building. The Court reviewed
the Town’s definition of “building,”
which was a one or two-family structure
and “any accessory structures thereto.”
The Zoning Law contained a section on
word usage, which further provided that
“the word ‘building’ includes the word
‘structure.’” The Court acknowledged
that cages are not generally considered
buildings, but that when they are
attached to the ground, as they were in
this case, they are considered
structures. The business was therefore
operating in an “accessory building” as
defined by the Zoning Law and the
interpretation of the Zoning Board of
Appeals was upheld.
Fenced area with cages for Salton’s exotic cats,
Mayfield NY. (Photo credit: John Carl D’Annibale, Times Union)
What Does It All Mean?
These decisions were issued on the same day but had very different outcomes — one
upholding the municipality’s interpretation of its Zoning Law and the other
overturning it. The interpretation that was upheld was supported by several
definitions in the Zoning Law; the decision that was not upheld was based on an
undefined term, leaving room for ambiguity and shifting the balance in favor of the
landowner.
The cases provide two valuable lessons. The first is that municipalities should provide
definitions for permitted uses in zoning laws to avoid a broader unintended
interpretation of the use. The second lesson is that the ZBA should be sure to review
the applicable standard of review and rules of statutory interpretation when reviewing
an appeal to avoid having its interpretation overturned.
More Information
Albany Basketball & Sports Corp. v. City of Albany Decision
Salton v. Town of Mayfield Zoning Board of Appeals Decision
Zoning Board of Appeals, James A. Coon Local Gov’t Technical Series
NYS Town Law Section 267-b(1)
NYS General City Law Section 81(b)
NYS Village Law Section 7-712-b
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This newsletter was developed by the Dutchess County Department of Planning and Development, in
conjunction with the Dutchess County Planning Federation.
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Plan On It, July 2014 Issue 3