Agenda - Planning Commission - 03/01/2018

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Zoning Bulletin January 25, 2018 I Volume 12 I Issue 2 vice, constituted a preexisting nonconforming use under section 165-13 of the Code —thus allowing its music concerts to continue without Town permit. After a hearing, the Town's Zoning Board of Appeals (the "ZBA") issued a determination that camping and attendant recreational activities on Frost Ridge's Property, including live and re- corded amplified music and limited food service, constituted a preexist- ing nonconforming use under the Code. Thereafter, David Cleere, Manly Cleere, W. Scott Collins, and Betsy Collins (the "Petitioners") commenced a legal action to annul the ZBA's determination. The Petitioners argued that the ZBA's decision was "arbitrary and capricious, made in violation of the law, and not based on substantial evidence in as much as the use of the Property to host commercial concerts was not a preexisting nonconforming use." The Supreme Court, Genesee County, agreed with the ZBA's determinations, and dismissed the Petitioners' petition. The Petitioners appealed. DECISION: Judgment of Supreme Court, Genesee County, affirmed. The Supreme Court, Appellate Division, Fourth Department, New York, held that the use of the property to host live concerts was a preexisting nonconforming use. In so holding, the court explained that a ZBA's determination "must be sustained if it has a rational basis and is supported by substantial evidence." The court also explained that "a use of property that existed before the enactment of a zoning restriction is a legal nonconforming use." The court explained that "[w]here, as here,'a zoning ordinance permits the ZBA to interpret its requirements ... `specific application of a teiiu of the ordinance to a particular property is . . . governed by the [ZBA's] interpretation, unless unreasonable or irrational'." The court concluded that the ZBA's interpretation and determination that hosting live concerts was consistent with the prior use of the property as a campsite was not, as the Petitioners had argued, arbitrary and capricious. Rather, the court concluded that the ZBA "rationally interpreted the term `campsite' as used in the Code as encompassing recreational activities including live music in determining that the use of the Property was a preexisting nonconforming use." The court explained that, here, the Code did not define "campsite," but did require any large campsite to "provide a common open area suitable for recre- ation and play purposes." Thus, the court concluded that the Code "expressly contemplate[d] that a campsite is a place for recreation." Acknowledging that the kind of recreation contemplated was "open to interpretation," the court found it rational to conclude that live music was one "kind of recreation to be enjoyed at a campsite." Moreover, © 2018 Thomson Reuters 7