September 15, 2016

In Lavender II v. Zoning Board of Appeals of the Town of Bolton, 141 A.D.3d 970 (3rd Dept. 2016), the court upheld the Zoning Board of Appeals’ (“ZBA”) decision that Mr. Lavender’s use of the property for large events violated the local Zoning Code.

The property was located in a RL-3 zoning district in which single family residences and “accessory uses” are permitted.  The Zoning Code defines “accessory use” as “[a]ny use of a structure, lot or portion thereof, that is customarily incidental and subordinate to and does not change the character of a principal land use.”

The Court held as follows:

“The ZBA found that, given the manner in which petitioner utilized and marketed Highlands Castle as a venue for weddings and other large social gatherings, the challenged use was neither subordinate nor customarily incidental to the primary single-family residential use of the property. On this record, we cannot say that such determination is either irrational or unreasonable. Petitioner insists that Highlands Castle is held out merely for residential rental use, yet the record belies such a claim. In offering Highlands Castle for rent, petitioner emphasized its availability for weddings, large parties and other social receptions. Notably, the property was marketed as available on a daily or even a “half-day” basis and was advertised upon a pricing structure specific to the type of event that may be of interest to the consumer and, in some instances, to the number of individuals that will be attending. The marketing of Highlands Castle thus evinces a clear intent to target a rental audience that sought more than just residential use of the property and, indeed, no evidence was presented that Highlands Castle had ever been rented out for use as a single-family residence. To the contrary, the evidence shows that Highlands Castle was rented eight times over the course of a roughly two-year period for large-scale events—including three weddings and an American Bar Association function. Further, given that the property is advertised for rent on a year-round basis without restriction as to availability, nothing prevents its regular use as an event venue on a more frequent basis than that which has previously occurred.”

The Court further held:

“In light of this proof, the ZBA could rationally conclude that petitioner’s activities in promoting and renting Highlands Castle as an event venue were neither incidental nor subordinate to the property’s residential use… In other words, the record supports the finding that “the business tail is wagging the residential dog…rather than vice versa.”

The Court also cited to neighbor complaints about noise and traffic to support the ZBA’s decision that Mr. Lavender’s use of the property for large events was not merely incidental, and noted that Mr. Lavender failed to submit evidence that his use was consistent with other single family residences in the Town.

Based on the foregoing, the Court held that the ZBA’s decision was both rational and reasonable.

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