Opinion
No. 1019/15.
06-02-2015
In the Matter of the Application of Stacy Bove–FULGENZI, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. The Zoning Board of Appeals of the Town of Mount Pleasant, Respondent.
Phillip A. Grimaldi, Jr., Attorney at Law, Hawthorne, for petitioner. Joseph A. Maria, P.C., White Plains, for respondent.
Phillip A. Grimaldi, Jr., Attorney at Law, Hawthorne, for petitioner.
Joseph A. Maria, P.C., White Plains, for respondent.
Opinion
DAVID F. EVERETT, J.
Upon the foregoing cited papers, the petition is granted for the reasons, and to the extent, set forth below.
Petitioner Stacy Bove–Fulgenzi petitions this Court for a judgment, pursuant to Article 78 of the CPLR, reversing, annulling and setting aside the resolution of respondent Zoning Board of Appeals of the Town of Mount Pleasant (ZBA) dated November 13, 2014, and filed in the office of the Town Clerk of the Town of Pleasant on December 8, 2014, denying her application for a special use permit for a private, nonprofit, dog kennel at her residence located at 77 Larry's Lane, Pleasantville, New York. She also seeks a determination that a special permit is not required in this matter. Respondent opposes the petition.
Petitioner avers that she has both owned and fostered rescue dogs at her home, without incident, for a long time, and that her current need for a special use permit stems from a petty feud with a neighbor. She explains that after she complained about her neighbor's storage of construction materials on the property adjacent to hers, he retaliated by notifying Mount Pleasant officials that she was harboring five dogs on her property. Officials from the local building department informed her that five dogs was one too many under local code (Town of Mount Pleasant Code § 83–15). Section 83–15 provides:
The only exception being her prior disposal of dog feces in a wooded area behind her backyard. Once alerted that this was a problem, petitioner took the necessary steps to remedy the problem to the satisfaction of the Town of Mount Pleasant and the Village of Pleasantville officials, who took no action. This was confirmed by a town official at the ZBA meeting.
New York's Agriculture and Markets Law § 109(1)(a) provides: “[t]he owner of any dog reaching the age of four months shall immediately make application for a dog license. No license shall be required for any dog which is under the age of four months and which is not at large, or that is residing in a pound or shelter maintained by or under contract or agreement with the state or any county, city, town or village, duly incorporated society for the prevention of cruelty to animals, duly incorporated humane society or duly incorporated dog protective association.”
“[e]xcept as provided in the Zoning Ordinance, no person shall keep more than four dogs of licensing age, as defined by the New York Agriculture and Markets Law, within the unincorporated limits of the Town of Mount Pleasant.”
Petitioner asserts that she explained to the Building Department officials that she owns four dogs as pets, and that the fifth is a rescue dog which she voluntarily agreed to foster for Stray From the Heart Inc., a not-for-profit dog rescue organization, pending its adoption. The Building Department officials reportedly advised her that, under the circumstances, she would need to apply for a special use permit for a kennel, pursuant to Zoning Ordinance of the Town of Mount Pleasant § 218–47. Section 218–47 provides:
“[t]he Board of Appeals may permit, as an accessory to a residence use on a site at least one acre in area, a private, nonprofit dog kennel for four or more dogs, but not including boarding or training kennels operated for business purposes. Such kennels shall be located in the rear yard at least 75 feet from all property lines and shall be suitably fenced and landscaped. Use of the kennel shall be limited to one dog for every 5,000 square feet of lot area. No special permit is required for the keeping of fewer then four dogs”
(petition, exhibit F).
Petitioner applied for the special use permit and her application was heard at the October 9, 2014 meeting of the ZBA. Led by their chair, the board members reviewed her application and the relevant statutes, Zoning Ordinance § 218–47, Town Code § 83–15, and Agriculture and Markets Law § 109(1)(a). The ZBA then discussed whether her application met the conditions for approving this type of special use permit, those being the size of her property, the location of the proposed kennel, the fencing on her property, and the manner in which the proposed kennel would be landscaped.
During the public hearing portion of the meeting, the ZBA received input from petitioner's neighbors, most of which was in opposition to the application. The neighbors expressed their opinions either in the form of vocal opposition or by written petition in opposition to petitioner's application. Like the petition, several residents of petitioner's neighborhood voiced concerns about the types of dogs which petitioner might foster, the vicious propensities of certain types of dogs, the possibility of the dogs escaping her property or barking excessively, and their concerns about potential changes to the character of the neighborhood. Members of the ZBA then discussed whether the application could be denied because petitioner's activities can be considered “for business purposes,” and therefore, prohibited under the zoning ordinance. To this end, certain members of the board theorized that the “for business purposes” prohibition is triggered because the act of fostering a dog for Stray From the Heart renders petitioner an “agent” of the organization. Therefore, if petitioner is its agent, the nonprofit rescue organization must be a “business” and, and by circular reasoning, her efforts must be “for business purposes.”
Petitioner responded to all of these issues by explaining that Stray From the Heart is a nonprofit dog rescue organization that provides shelter, food, training, education, veterinary and wellness care for the fostering of rescued animals for adoption, that the organization pays all costs associated with the fostered dogs, including reimbursing her for any food and veterinary expenses she incurs on behalf of the rescue dog, and that she receives absolutely no compensation for any of the care she provides. Petitioner argued that granting her application would not cause a change in character to the neighborhood because she has been doing this for a long time. She pointed out that in all that time, with the exception of the one incident involving the disposal of dog feces, she never received any complaints or violations with respect to the dogs. She further stated that she prefers to keep the dogs in her house, but would comply with all local code and zoning ordinances, including installing a kennel on her property, and agree to foster only one dog at a time.
The ZBA also heard testimony from the animal warden for the Town of Mount Pleasant, Marty Rogers. Rogers reported that there had been no complaints about petitioner's dogs and that no violations had been issued with respect to her dogs. When asked, Rogers confirmed that the kennel could be specifically designed to house only one dog, that he could limit petitioner to one rescue dog at a time, and that he would ensure compliance with all regulations. Rogers also stated that the fifth dog had been licensed through the rescue organization and, with respect to breed specific legislation, advised the ZBA that New York does not permit breed specific laws and that such legislation is prohibited in the state (see Agriculture and Markets Law § 107[5] ).
In the board's ensuing discussion, the only issue that continued to be debated was whether petitioner's application could be denied on the basis that her fostering of rescue dogs for Stray From the Heart constituted a “for business purposes” activity, within the meaning Section 218–47. Due to a lack of a consensus on this issue, the ZBA voted to refer this specific question to the Town Attorney for a legal opinion.
The ZBA met again on November 13, 2014. After announcing the Town Attorney's opinion that the “for business purposes” clause was inapplicable to petitioner's application (tr at 3), the ZBA engaged in further discussions as to whether to apply the clause “for business purposes” to petitioner's application and deny it on that ground. Among the arguments proffered in opposition to petitioner's application were: (1) that the zoning ordinance was referring to “pets,” and because the fostered rescue dog is not petitioner's “pet,” she is not entitled to a special use permit to install a kennel for use by a non “pet”; (2) a kennel intended for use by a rescue dog (a non “pet”) cannot be considered “as an accessory to a residence use”; and (3) the renewed assertion that, because petitioner is an “agent” for organization, her activities on the organization's behalf, must be “for business purposes.”
The board members remained split on this issue, and ultimately voted, 3–2, against granting petitioner's application. The sole ground provided in the ZBA's written order for denial, dated November 13, 2014, is as follows:
“6. the Board has determined that the boarding and training of dogs, as well as other related activities of the applicant related thereto as set forth in the record, for the subsequent adoption or placement of such dogs by or to third parties other than the applicant are business purposes within the meaning of the Zoning Code of the Town of Mount Pleasant Section 218–47”
(petition, exhibit B). The ZBA made no other findings with respect to petitioner's application, nor did it provide any indication that her application was deficient as to any of the preconditions to issuance of the special use permit for which she applied.
In opposition, respondent directs the Court to many of the same zoning ordinances, ZBA documents and transcripts cited by petitioner or annexed by petitioner to her petition. The tenor of the ZBA's Answer to Petition is that petitioner Bove–Fulgenzi does not have the right to challenge the its determination, but offers no legal basis for that assertion. Simply asserting that the ZBA's determination is entitled to deference, without pointing to any evidence in the record that supports its determination, does not suffice as a basis for denying the petition, especially where, as here, the application was for a special use permit.
It is undisputed that “[l]ocal zoning boards have discretion in considering variance applications, particularly given their familiarity with local conditions necessary to make the often sensitive planning decisions which affect the development of their community” (Matter of Caspian Realty, Inc. v. Zoning Bd. of Appeals of Town of Greenburgh, 68 AD3d 62, 77 [2d Dept 2009] [internal quotation marks and citation omitted], lv denied 13 NY3d 716 [2010] ), and that its determination “should be sustained on judicial review if it has a rational basis and is supported by substantial evidence” (Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004] ). However, the issue before the ZBA was whether to approve petitioner's application for a special use permit. A special use permit, unlike a variance, authorizes the use of property in a manner expressly permitted within a particular zoning district (see Matter of East Hampton Lib. v. Zoning Bd. of Appeals of the Vil. of E. Hampton, 31 Misc.3d 1231[A], 2011 N.Y. Slip Op 50921 [U] [Sup Ct, Suffolk County 2011] ). The significance of the distinction between a special permit and a variance is that “[t]he classification of a particular use as permitted in a zoning district is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood” (Matter of Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, 1002 [1997] [internal quotation marks and citation omitted] ). As a result, “the administrative function of acting on a special permit is far more limited in scope than the range of possible review on an application for a variance ... [and] the issuance of a special permit is a duty which must be exercised whenever there is compliance with the statutory conditions” (Matter of Peter Pan Games of Bayside v. Board of Estimate of City of NY, 67 A.D.2d 925, 925–926 [2d Dept 1979] ).
Furthermore, even in the instance of a variance, a zoning board's determination may be set aside “where the record reveals that the board acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure” (Matter of Pecoraro v. Board of Appeals of Town of Hempstead, 2 NY3d at 613 ).
Here, despite having referred the question to the Town Attorney, who opined that the “for business purposes” clause was not applicable to petitioner's application, several members of the ZBA endeavored to find a way to classify her activities as precisely that. Whether the board members actually believed that petitioner's activities are “for business purposes,” or were succumbing to pressure from her neighbors, their attempts to read Section 218–47 as limiting a special use permit for a kennel only to situations where the intended dog is a “pet,” as opposed to a fostered rescue dog, is contrary to the fundamental principles of statutory interpretation.
“Legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction” (McKinney's Cons Laws of NY, Book 1, Statutes § 94; see also Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d 577, 583 [1998] ). “New language cannot be imported into a statute to give it a meaning not otherwise found therein” (Matter of Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98, 104–105 [1997] [internal quotation marks and citation omitted] ), and “a court, in discerning the meaning of statutory language, must “avoid objectionable, unreasonable or absurd consequences” (Roberts v. Tishman Speyer Props., L.P., 62 AD3d 71, 81 [1st Dept 2009], affd 13 NY3d 270 [2009] ).
Turning to the ZBA's scrutinization and interpretation of section 218–47, it is well settled that “[s]ince zoning regulations are in derogation of the common law, they must be strictly construed against the municipality which has enacted and seeks to enforce them. Any ambiguity in the language used in such regulations must be resolved in favor of the property owner” (Matter of Allen v. Adami, 39 N.Y.2d 275, 277 [1976] [internal citations omitted] ).
Not only has the ZBA failed to demonstrate that it is authorized to interpret the zoning ordinance at issue, or to demonstrate that such interpretation is anything other than conjecture, but Section 218–47, which does not differentiate between dogs which are considered pets and those which are not, also does not define the clause “for business purposes.” Even if this Court were to deem the clause to be ambiguous, it would have to construe the clause in favor of petitioner, as the property owner.
The ZBA fails to point to any failing on the part of petitioner to meet all preconditions for the special use permit. It efforts to rationalize its decision, through convoluted rhetoric advocating the somewhat baffling classification of a voluntary, unpaid, act of kindness toward a rescue dog, as a “business,” in order to disapprove her application for a special use permit, was an arbitrary and capricious exercise of the duty enjoined upon it. In view of the lack of evidence in the record substantiating the ZBA's determination, to find otherwise would lead to an objectionable, unreasonable and absurd result (Roberts v. Tishman Speyer Props., L.P., 62 AD3d at 81 ).
Accordingly, it is
ADJUDGED that the petition is granted to the extent that the determination of the respondent Zoning Board of Appeals of the Town of Mount Pleasant is reversed, annulled and set aside, and the matter is remanded to the Zoning Board of Appeals of the Town of Mount Pleasant for the issuance of the special use permit sought by petitioner, forthwith; and it is further
ADJUDGED that petitioner Stacy Bove–Fulgenzi recover from respondent the Zoning Board of Appeals of the Town of Mount Pleasant, One Town Hall Plaza, Valhalla, New York, costs and disbursements in the amount of $__________, as taxed by the Clerk, and that petitioner have execution therefor.