Posted On: January 22, 2013

Court Vacates Conditions Fixed By Zoning Board

The Appellate Division Second Department vacated conditions fixed by a zoning board as part of the grant of a permit to operate a farm stand. In The Matter of Edson v. Southold Town Zoning Board of Appeals, the Court reversed the lower court's dismissal of the petition.

The Petitioner has a Christmas tree farm and wanted to also open a farm stand in its building. However, the building is 7,826 square feet, where the Town Code limits farm stands to 3,000 square feet. The Petitioner proposed to partition the building and limit the area used for the farm stand to 3,000 square feet. After the building inspector denied the permit the Petitioner applied to the zoning board. The zoning board found that the application met the requirements of the code but fixed conditions not agreed to by the Petitioner. The conditions limited the operations to only certain months and prohibited the storage of incidental items, not raised on the farm, within the balance of the building outside the stand.

In reversing the lower court and vacating the conditions the Court held:

" the board could have acted within its authority to rationally interpret the Town Code so as to require that all farm stand inventory be stored within the 3,000 square-foot area limitation of the proposed farm stand (see generally Matter of Ferraris v Zoning Bd. of Appeals of Vil. of Southampton, 7 AD3d 710, 711). However, it did not have the authority to attach a condition to its approval of the petitioner's farm stand application that arbitrarily distinguishes between the types of inventory to be offered for sale, by permitting the storage of farm stand inventory produced on the petitioner's farm in the partitioned area adjacent to the proposed farm stand, while prohibiting the similar storage of incidental accessory items that are not produced on the petitioner's farm. Likewise, there is no authority in the Town Law or the Town Code, or any evidentiary basis, for the imposition of the condition limiting the operation of the proposed farm stand to a particular season or to specific dates. Accordingly, the judgment must be reversed, the petition reinstated and granted, and so much of the determination as imposed the challenged conditions annulled."

-Steven M. Silverberg