Matter of Edscott Realty Corp. v. Town of Lake George Planning Board , 21 N.Y.S.3d 447 ( 2015 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: December 10, 2015                   520841
    ________________________________
    In the Matter of EDSCOTT
    REALTY CORP.,
    Appellant,
    v
    TOWN OF LAKE GEORGE PLANNING                MEMORANDUM AND ORDER
    BOARD,
    Respondent,
    and
    CHARLES LaPLANTE et al.,
    Respondents.
    ________________________________
    Calendar Date:   October 13, 2015
    Before:   Lahtinen, J.P., Garry, Egan Jr. and Clark, JJ.
    __________
    Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (John
    D. Wright of counsel), for appellant.
    Caffry & Flower, Glens Falls (John W. Caffry of counsel),
    for Charles LaPlante and another, respondents.
    __________
    Egan Jr., J.
    Appeal from a judgment of the Supreme Court (Krogmann, J.),
    entered June 16, 2014 in Warren County, which dismissed
    petitioner's application, in a proceeding pursuant to CPLR
    article 78, to review a determination of respondent Town of Lake
    George Planning Board granting conditional site plan approval to
    respondents Charles LaPlante and Veronika LaPlante.
    -2-                520841
    Petitioner is the owner of certain real property located
    along the western shore of Lake George in the Town of Lake
    George, Warren County, upon which petitioner operates the
    Olympian Village Motel. Respondents Charles LaPlante and
    Veronika LaPlante own an adjacent parcel of land to the north of
    petitioner's property upon which they operate a motel known as
    the Stepping Stones Resort. The properties in question are
    separated by a stockade fence – the existence and height of which
    has been the subject of prior litigation. Insofar as is relevant
    here, the LaPlantes applied for and were granted an area variance
    by the Town of Lake George Zoning Board of Appeals (hereinafter
    ZBA) to make certain modifications relative to the height of the
    existing fence, which extends approximately 534 feet from the
    shoreline of Lake George to State Route 9N. Supreme Court
    subsequently upheld the ZBA's issuance of the subject variance,
    but remitted the matter for consideration and application of Code
    of the Town of Lake George § 175-23, which establishes a
    Shoreline Overlay District and addresses, among other things, the
    screening requirements for all structures located within 300 feet
    of the mean high-water mark of Lake George. Upon remittal, the
    ZBA concluded that application of the cited ordinance was a
    matter for respondent Town of Lake George Planning Board to
    resolve.
    The LaPlantes then applied for site plan review – setting
    forth the existing number of trees along the fence line and
    describing the vegetation already in place. The Planning Board –
    after expressly referencing the number of trees "up through the
    fence line" – conditionally approved the LaPlantes' application,1
    prompting petitioner to commence this CPLR article 78 proceeding
    to challenge the Planning Board's determination. Supreme Court
    dismissed petitioner's application and, in so doing, rejected
    petitioner's interpretation of the screening requirements and
    found that the Planning Board's determination was in all respects
    rational. This appeal by petitioner ensued.
    1
    Such approval was subject to a requirement that the
    portion of the fence that extends onto the LaPlantes' dock be
    replaced with a less visually obstructive railing.
    -3-                520841
    Code of the Town of Lake George § 175-23 (D) (3) provides
    that "[a]ll structures, including accessory structures, except
    docks and boathouses that are within 300 feet of the mean high-
    water mark of Lake George shall be screened by vegetation or
    landscaped in such a way so that the view of the structures from
    the water is filtered and the visual impact minimized. This
    screening will be of a buffer type B as described in the
    landscape and screening provisions of the commercial design
    guidelines, unless otherwise prescribed by the Planning Board.
    The intent of these regulations is to provide a filtered view to
    promote a see-out-not-in policy." A type B buffer, in turn,
    requires a minimum landscaped width of 20 feet with three trees
    (at least six feet in height) per 100 linear feet of buffer (see
    Code of Town of Lake George § 175, Appendix I, § 8.2.8.2, Table
    3).
    Petitioner initially argues that interpretation of the
    cited ordinance presents a purely legal question to which no
    deference to the Planning Board's interpretation is required and,
    as the Planning Board granted conditional site plan approval
    without requiring the installation of any screening on the south
    side of the subject fence, its determination in this regard
    necessarily was arbitrary and capricious. We disagree. Although
    the ordinance indeed requires that the view of the fence from the
    water be "filtered," contrary to petitioner's assertion,
    "filtered" is not the functional equivalent of "invisible."
    Similarly, the directive that the visual impact of the fence be
    minimized does not require that it be eliminated altogether.
    Further, nothing on the face of Code of the Town of Lake George
    § 175-23 (D) (3) or the accompanying design guidelines mandates
    that the screening requirements embodied therein be applied to
    both sides of the fence. Rather, it is apparent that the
    relevant inquiry is whether – taken as a whole – the view of the
    fence from the water has been sufficiently filtered and the
    visual impact thereof has been adequately minimized. This, in
    turn, is precisely the type of subjective, fact-based
    determination to which we accord the Planning Board's findings
    "great deference" (Matter of Erin Estates, Inc. v McCracken, 84
    AD3d 1487, 1489 [2011] [internal quotation marks and citation
    omitted]; see Matter of New York Botanical Garden v Board of
    Stds. & Appeals of City of N.Y., 91 NY2d 413, 420-421 [1998]).
    -4-                520841
    Here, in addition to the documentation contained in the
    LaPlantes' site plan application, which included a summary of the
    area variance previously granted, a description of the existing
    trees and vegetation along the fence line and various maps,
    drawings, surveys and photographs of the LaPlantes' property, the
    Planning Board considered the arguments made by counsel for the
    respective parties, as well as the observations made by one of
    its members, who personally visited the site and made specific
    reference to the number of trees along the fence line. In light
    of these submissions and findings, the record as a whole provides
    a rational basis for the Planning Board's determination.
    Notably, the plain language of Code of the Town of Lake George
    § 175-23 (D) (3) affords the Planning Board some measure of
    discretion relative to the subject screening requirements, and it
    is not the role of the courts to second-guess reasoned
    administrative determinations that otherwise find support in the
    record (see Matter of Schaller v Town of New Paltz Zoning Bd. of
    Appeals, 108 AD3d 821, 823 [2013]; Matter of Frigault v Town of
    Richfield Planning Bd., 107 AD3d 1347, 1350 [2013]; Matter of
    Druyan v Village Bd. of Trustees of the Vil. of Cayuga Hgts., 96
    AD3d 1207, 1208 [2012]).
    To the extent that petitioner's challenge to the type and
    height of the fence itself falls within the scope of the Planning
    Board's grant of conditional site plan approval, we again discern
    no basis upon which to disturb the Planning Board's
    determination. The purpose of site plan review "is to allow the
    proper integration into the community" of various uses and
    structures – specifically with respect to the impact of such uses
    and structures upon the "surrounding properties," as well as "the
    natural, historic and scenic resources" of the community (Code of
    Town of Lake George § 175-36 [B], [C]). To that end, the zoning
    provisions require that the size, shape, color and material of
    the structure at issue – here, the stockade fence – "be
    consistent with the character of neighboring buildings" and "in
    harmony with the landscape character" (Code of Town of Lake
    George § 175-43 [F] [3], [4]). Here, in light of the staggered
    height of the fence, the positioning of its "good side" and the
    Planning Board's modification relative to the portion of the
    fence closest to the lake, together with the record evidence
    documenting the existence of similar fences in the immediate
    -5-                  520841
    vicinity of petitioner's property, we agree with Supreme Court
    that the Planning Board's grant of conditional site plan approval
    was not arbitrary and capricious. Petitioner's remaining
    contentions, as well as the LaPlantes' request for costs under 22
    NYCRR 130-1.1 (a), have been examined and found to be lacking in
    merit.
    Lahtinen, J.P., Garry and Clark, JJ., concur.
    ORDERED that the judgment is affirmed, with costs.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 520841

Citation Numbers: 134 A.D.3d 1288, 21 N.Y.S.3d 447

Filed Date: 12/10/2015

Precedential Status: Precedential

Modified Date: 1/12/2023