Citation Numbers: 191 Misc. 2d 807, 744 NYS2d 310
Judges: Julian
Filed Date: 6/18/2002
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
Question Presented: Petitioners, by a CPLR article 78 proceeding, contend that the regular use of two-, three- and four-wheel recreational vehicles on property zoned rural-residential is a customary use permitted under the town zoning ordinance; and that the Town’s order prohibiting use of these vehicles on worn tracks on the petitioners’ property is arbitrary, capricious and an abuse of discretion.
Holding: Use of these vehicles by the petitioners is permitted and the Town did abuse its discretion. Petition granted.
The petitioners timely brought this article 78 proceeding to challenge the Town’s order. The court issued a decision on April 9, 2002, ordering a hearing pursuant to Town Law § 267-c. The court held a hearing commencing on May 13, 2002. The court has found the following facts and made the following determinations:
The petitioners’ property consists of approximately 135 acres, including a one-family residence. The petitioners use their property, among other things, for the operation of various recreational vehicles by friends, neighbors, and family members.
The Town raised, as a threshold bar to relief to the petitioners, the claim that the identical issue had been resolved by Honorable John Murad, Justice of the Supreme Court, in Matter of Cole v Paris (Index No. 99-1993), in a decision dated March 28, 2000. Justice Murad there found that a “motorcycle racing track” is not a customary accessory use of property in an
The factual issue before the court was, therefore, whether or not the use of recreational vehicles, such as motorcycles, three-wheelers, four-wheelers and other like vehicles, and the concomitant worn paths left by their use, constitutes a customary accessory use in R-R residential districts in the Town of Paris. The court, having heard from witnesses called by both parties on this issue, concludes that the Spinellas’ use of recreational vehicles, such as motorcycles, three-wheelers, four-wheelers and other like vehicles, including the creation of worn paths and trails associated therewith, is a customary accessory use of such property in the Town of Paris.
It is undisputed that, in addition to recreational vehicles, Mr. and Mrs. Spinella utilize vehicles for the purpose of maintaining their acreage and travel on paths, some of which were preexisting their ownership, for the purpose of obtaining fire wood and otherwise maintaining their acreage. Mr. Spinella drew on an exhibit his specific uses of worn paths by truck and other vehicles for the purpose of maintaining the property. This use constitutes a substantial portion of the worn path footage located on the property.
It is undisputed that over and above this use there are other worn paths that are utilized exclusively for recreational vehicles, although in virtually all circumstances those paths connect to the worn paths that are also utilized for maintenance purposes. It is also acknowledged that the paths used for maintenance purposes are coincidentally also ridden on by recreational vehicles.
The Spinellas have described the use of their property for recreational vehicles. There was no proof of “racing,” but rather recreational, leisure time riding by themselves, their children and certain of their friends. The Spinellas testified that the worn paths have been created both by design and use and that
The Town takes the position that the use of recreational vehicles of this type is allowed but not to the extent that repetitive use creates a race track. The Town contends that the Spinellas’ use of the property is as a race track and thus prohibited under the zoning ordinance. The Town argues that this is not a customary use envisioned by the zoning ordinance. The Town indeed endeavored to argue that under article V, § 7 of the zoning ordinance “customary accessory buildings or use” is simply defined as outbuildings and swimming pools, and that no other use is permitted as a customary use under the zoning ordinance and thus a hearing was not indicated as a matter of law. The Town Zoning Officer acknowledged however that section 7 did not encompass customary accessory use, that customary accessory use was not defined in that section, and that section 7 was really directed toward a definition of customary accessory outbuildings. Indeed section 7 solely defines customary accessory outbuildings. Therefore, the court rejects the Town’s argument that the zoning ordinance defines “customary accessory use” in section 7 and concludes that the definition and scope of “customary accessory use” is a question of fact, and cannot be determined by definitions within the four corners of the zoning ordinance. A hearing was properly ordered for the purpose of determining whether or not petitioners’ use was a “customary accessory use” of their property.
The facts demonstrate that the real issue here is not an inappropriate use of the property as restricted by the zoning ordinance, but that the use by the Spinellas of their vehicles caused complaints of noise and dust by certain neighbors. Exhibit 1 of the affidavit of Mark Bartlett sets forth a series of complaints from certain neighbors with regard to noise. The Town of Paris does not have a noise ordinance or a nuisance ordinance of any type, and rather than the Town Board making the necessary public policy decisions and implementing legislation associated therewith to abate noise and dust, the court is being asked to engage in a legislative expansion of the zoning ordinance to achieve the same purpose.
The court rejects this request and will not step into the shoes of the Town Board or underwrite the Board’s attempt to step out of them. The Town cannot bootstrap itself into a noise or nuisance ordinance by asking the court to judicially expand the zoning law to somehow embrace and encompass the law of
“The evidence before the court leaves little doubt that recreational motorcycle riding is a customary accessory use of residential property in the Town of Mendon. The Town’s attempt to cast this action in terms of the track itself is of no avail. The track is not a structure, and more to the point it has no effect at all on the character of Shane Bartholfs activity or on its impact on nearby property owners. If motorcycle riding creates undue amounts of noise a Town noise ordinance would be an appropriate way of limiting it; but no such ordinance appears to have been enacted. The zoning code cannot be forced in to do its job. ‘Operating a motocross track’ sounds like a zoning violation, but in this case its true meaning is ‘riding a cross-country motorcycle’ — and so framed the Town’s claim at best sounds in nuisance.”
There can be no question based upon the testimony of various town residents that it is a customary use of property in the R-R district of the Town of Paris to have and use off-road recreational vehicles. While the Town’s determination that there is a motorcycle track on the Spinellas’ property and therefore a zoning violation based on the existence of a worn path strikes the court as an absurdity. The proof in the case is, by a great and clear preponderance, that there are a significant number of worn paths created by vehicles in the R-R area of the Town of Paris pursuant to uses comparable to the Spinel-las’ use. The Town has argued the fact that the Spinellas engage in certain work in order to maintain the paths for safety purposes. This is irrelevant. The Town Board’s attempt to force these property owners to abandon this customary accessory use and to keep their properties unsafe for this use in order to comply with the zoning ordinance is an abuse of discretion and outside of the four corners of the zoning ordinance. It is also relevant that permitted uses of R-R zoned property include
Based upon an extensive evidentiary hearing the court therefore finds as a fact that the use of various aforementioned all-terrain vehicles and the concomitant creation of worn paths is a customary accessory use within the R-R zoning district in the Town of Paris.
The court, based on that factual finding, finds that the petition must be granted and the order to remedy violation is accordingly vacated.