Opinion
Index No. EF20221409
10-14-2022
In the Matter of the Application of Bob Forman and Lisa Dube Forman, Petitioners, v. Town of Northumberland Planning Board, John Cornell and Two Lions Farm, LLC, Respondents, For a determination pursuant to CPLR Article 78.
For Petitioners: Karla M. Williams Buettner, Esq., Glens Falls, New York For Respondents: David C. Brennan, Esq., Albany, New York Paul A. Levine, Esq., Albany, New York
Unpublished Opinion
For Petitioners: Karla M. Williams Buettner, Esq., Glens Falls, New York
For Respondents: David C. Brennan, Esq., Albany, New York Paul A. Levine, Esq., Albany, New York
Thomas D. Buchanan, J.
Petitioners commenced this CPLR Article 78 petition seeking an order annulling a determination by respondent Town of Northumberland Planning Board (the "Town") which granted respondents John Cornell and Two Lions Farms, LLC (collectively, "Cornell") a special use permit and site plan approval. This dispute involves adjacent landowners, with Petitioners boarding Irish wolfhounds and the Cornell respondents operating a horse farm. Prior to Petitioners' purchase of 169 Beaver Street in the Town of Northumberland, the neighboring lot had been purchased by Cornell, who continued to operate said lot as a horse farm consistent with its prior use as a horse farm for the past 40 years. Both lots are contained within a state approved Agricultural Protection District which was specifically created to foster and preserve agriculture in the Town of Northumberland.
The record suggests that at the time Petitioners purchased their lot, they acknowledged that Cornell operated a horse farm next door and that both their property and that of their neighbor were contained within the agricultural district. In short, Petitioners were well aware that Cornell had a right to farm on his property. Such knowledge is especially attributable to petitioner Lisa Forman, who was and is a licensed real estate agent.
A dispute between Petitioners and Cornell appears to have arisen initially from a complaint by Cornell that Petitioners' dogs were causing his thoroughbred horses to run. Thereafter, upon being advised that Cornell was proposing the construction of a barn 400 feet from their home, Petitioners complained that it would have a detrimental effect on their property through light pollution and an obstructed view. All of the concerns addressed to the Court by Petitioners were previously raised and considered by the Town during the approval process.
In his application to the Town, Cornell proposed construction of an indoor riding arena as part of a multipurpose barn. Accordingly, the Town required a special use permit and site plan approval instead of simply issuing a building permit for said barn. As part of the process, the Town reviewed the application and Part 2 of the Short Environment Assessment Form (SEAF); reviewed the plans; held public hearings; provided the public the opportunity for comment; and considered its engineering consultant's assessment. Throughout this process various revisions were made to address environmental engineering concerns after which the Town's designated engineer determined that the site plan was devoid of any deficiencies. Following respondent Cornell's compliance with various requests for revisions, a special use permit and site plan approval were granted on May 23, 2022.
It is black letter law that a determination by a municipal land use agency must be confirmed so long as it is rational and not arbitrary and capricious. Further, the determination is accorded great deference so long as it has a rational basis and is supported by substantial evidence (Matter of Edscott Realty Corp v. Town of Lake George Planning Board, 134 A.D.3d 1288 (3d Dept 2015). Where substantial evidence is present, a reviewing court may not substitute its own judgment for that of the approving board (Matter of Citizens Accord, Inc. v. Town Board of the Town of Rochester, 192 A.D.2d 985 [3d Dept 1993]). In this case, the record makes clear that the Town conducted a thorough review of the Cornell application under its Zoning Code and that its approval had a rational basis supported by substantial evidence.
Petitioners also contend that the Town improperly classified the application as a Type II action under SEQRA. However, 6 NYCRR §617.5(c)(4) identifies "agricultural farm management practices, including construction, maintenance and repair of farm buildings and structures, and land use changes consistent with generally accepted principles of farming" as being actions not subject to SEQRA review. This Court holds that construction of a barn, including a riding stable therein, falls well within the scope of farm buildings and structures consistent with generally accepted principles of farming. Accordingly, respondent's classification of Type II under SEQRA is not arbitrary and capricious and is supported by substantial evidence.
Petitioners further argue that Cornell engaging in improper "segmentation." This argument is based upon a single verbal statement during the course of the hearings that, at some point, Cornell may seek to construct a residence on the property. However, there is no evidence that Cornell's vague speculation as to the possibility of constructing a residence along the road in the future is in any way related to the construction of the barn. SEQRA defines "segmentation" as "the division of the environmental review of an action such that various activities or stages are addressed under this Part as though they were independent, unrelated activities needing individual determinations of significance" (6 NYCRR 617.2 [ah]). Here, contrary to Petitioners' concern, the possible construction of a home along the road at some undefined time in the future, if it were to happen at all, would be an independent unrelated activity and would require an individual determination of significance. Accordingly, the proposal does not meet the definition of "segmentation" and the Town was well within its discretion to characterize the project as Type II.
The Court finds that the Town's determination was rational and supported by substantial evidence. The Town was well within its discretion to issue site plan approval and a special use permit. Petitioner's remaining contentions have been considered and do not alter this outcome. Therefore, in consideration of the foregoing, it is
ORDERED, that Petition is denied in its entirety; and Respondents are awarded their costs and disbursements in this proceeding.
Papers considered:
Notice of Petition; Verified Petition with annexed exhibits; Affidavit of Lisa Dube Forman, with annexed exhibits; Affirmation of Karla M. Williams Buettner, Esq.; Affirmation in Opposition of Paul A. Levine, Esq.; Affirmation in Opposition of David C. Brennan, Esq., with annexed exhibits; Memorandum of Law in Opposition; Answer with Objections in Point of Law by Respondents John Cornell and Two Lions Farm, LLC; Memorandum of Law in Opposition; Verified Answer of Town of Northumberland Planning Board; Memorandum of Law; Affirmation in Opposition of David C. Brennan, Esq.; Appendix [administrative record].