September 13, 2017

In the case entitled Carnelian Farms, LLC v Leventhal, 2015 WL 3970095 (NY Slip Op 04833, Decided June 14, 2017) the Court upheld the Village of Muttontown’s decision to require the Petitioner to remove all excavated material from the property.

By way of background, Petitioner Carnelian Farms, LLC owns a 60-acre property in Nassau County on which Hunter’s Moon Farm, LLC, as tenant, has operated a commercial horse boarding and training facility pursuant to a special use permit issued in 1977.  Petitioner applied for an amended special use permit to update their facility, including the construction of a new indoor riding area.

The Village issued the building permit on the condition “…that all excavated material generated during the construction be removed from the site at the time such material was generated, and not be stockpiled or spread on the property.”  Petitioners appealed that condition to the Village of Muttontown Zoning Board of Appeals and, applied for a permit to use some of the excavated material as fill to improve other portions of the farm, including the infield of the racetrack.  The Zoning Board Appeals upheld the building inspector’s condition and denied the application to use the material as fill.

The property owner and tenant commenced a CPLR article 78 proceeding against the Village’s Zoning Board of Appeals.  The lower court granted the Petition and the Appellate Division, Second Department reversed, holding in relevant part as follows:

“Here, the determination of the ZBA that the Building Inspector had properly included a condition in the building permit directing that all excavated material be removed from the premises and not be stockpiled or spread, as well as the ZBA’s denial of so much of the petitioners’ fill permit application as sought to use the excavated material to regrade the infield of the racetrack, was not illegal, arbitrary and capricious, or an abuse of discretion…The ZBA properly considered the scope of the construction at the premises and the amount of fill that would be generated as a result. After considering the proposed use of the fill and the environmental effects of those proposals, the ZBA concluded that removal of the fill, rather than any of the alternatives proposed by the petitioners, was the most appropriate course of action.”

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