Agenda - Planning Commission - 04/01/1997

Home

Page 8 -- March 10, 1997 Z.B. to claim. Kahana could appeal the decision in court unless the decision constituted a general rule ofpolicy. The city did not claim to have formulated any general rule when it denied Kahana the wetzone designation, so it did not prove the denial was legislative. Editor's note: tn ruling that the city hadn't proved the decision was legislative, the court was careful not to rule on whether it was quasi-judicial. It simply said the case could not be dismissed for lack of evidence supporting the city's argument. Zoning Violation -- Town brings criminal charges against shoe company Baris Shoe Co. Inc. ~: Tow~ of Oyster Bay, 650 N.Y.S.2d 776 (New York) 1996 The Baris Shoe Co. leased a warehouse in Hicksville, N.Y. The warehouse was located in an area zoned by the town of Oyster Bay for light-industrial use. Baris wanted to operate a retail shoe store in part of the warehouse. Before signing the lease, Baris had asked the landlord to get a written statement from the town stating that operating a retail shoe store in 10% of the warehouse would not violate the town's zoning ordinance. A deputy commissioner from the town wrote a letter stating that "[iq 90 percent of the floor area is used for warehousing and shipping and the remaining 10 percent devoted to office and retail, it is the opinion of this Department that said uses would be permitted." Baris never requested a special exception from the town to operate the store. After operating a retail shoe store in the warehouse for more than three years, the town filed'criminal charges against Baris for alleged zoning ordinance violations related to the retail shoe store. The town-had allegedly received complaints about the store. Baris asked the court to 5top **'~" ~ ' ,,¢ town trom pursmng the criminal complaint and for judgment without a trial about the alleged zoning ordinance violatiuns. The court denied both requests and said Baris' operation of the retail shoe store without a special exception violated the town's zoning ordinance. Baris appealed. It argued the criminal charges should not be pursued because the town was selectively enforcing its zoning ordinance. Baris alleged that seven other locations in the light-industrial zone were violating the zoning ordinance, but the town had not charged them with violations. Baris also argued that the court should hold the town to the deputy commissioner's earlier interpretation zoning ordinance. ' SION: Affirmed. e issue of seIective zoning-ordinance enforcement needed to be resolved at a trial, not before. In addition, the town should not be stopped from pursuing criminal charges because operating a retail store in a light industrial zone required a special exception. Baris never asked for a special exception. ,.Also, a municipalit,y, cannot be prevented from enforcing its zoning oydin,ances. Since the tow n had the power to interpret/ts zoning ordinances, it also h, ad the ,power to overrule or modify past decisions. The deputy ~,~oner s interpretation did not forever bind the town.