Court Upholds Zoning Board Interpretation of Permitted Accessory Use

The Appellate Division upheld a zoning board's determination that recreation facilities open to the public is a permitted accessory use for a school. In the Matter of East Hampton Indoor Tennis Club, LLC v. Zoning Board of Appeals of Town of East Hampton, the Court found that the zoning board correctly affirmed the determination of the building inspector.

The petitioner, which operates a commercial tennis facility, had requested an interpretation by the building inspector when it learned a local school intended to build a recreational facility, which includes a tennis facility that would be open to the public for a fee after school hours and in the summer. The Court noted that the building inspector made inquiry of public schools in the area and determined they had made similar use of their recreational facilities and, absent a specific provision in the zoning ordinance, finding this to be a permitted accessory use was a reasonable application of the ordinance.

First, addressing the issue of standing of the petitioner to bring the challenge, the Court held:

"petitioner established that it held a legal interest in properties located in close proximity to the subject property, including properties required to receive notice of the administrative hearing, and demonstrated that certain alleged injuries, aside from the threat of increased business competition, were within the "zone of interest[s]" protected by the zoning laws..."

Then noting that generally the interpretation of a zoning ordinance, while given great deference, is subject to an exception when there is a purely legal question, "this exception does not apply in the instant case, as the analysis of whether the proposed accessory use is incidental to and customarily found in connection with the principal use of the property is, to a great extent, fact-based...".

In upholding the zoning board, the Court found:

"the petitioner does not dispute that recreational facilities, such as playing fields and tennis courts, are, in general, customary and incidental to the educational purpose of a school (see Town of Islip v Dowling Coll., 275 AD2d 366). Instead, the petitioner contends that the subject facilities should be treated differently because the school intends to use the facilities to conduct year-round, fee-based programs for the general public. The ZBA considered this proposed use, inquired into the customary practices at other local schools, and reasonably determined that the subject facilities would still constitute uses accessory to the primary educational purpose of the school so long as any public use was restricted to hours when school was not in session. Affording the ZBA's determination appropriate deference, we cannot say that its classification of the subject facilities as an accessory use was illegal, arbitrary and capricious, or an abuse of discretion...".

-Steven Silverberg