Petitioner owned property along the western shore of Lake George, on which Petitioner operated the Olympian Village Motel. Respondents LaPlantes owned an adjacent parcel to the north of Petitioner's property, where they operated a motel (Stepping Stones Resort). Respondents applied for and were granted an area variance by the Town of Lake George Zoning Board of Appeals to make certain modifications to the height of the fence between the properties. The NY Supreme Court upheld the ZBA's issuance of the variance, but remitted for consideration of the application of Town Code § 175–23, which provides the screening requirements for all structures within 300 feet of the Lake George’s mean high-water mark. On remittal, the ZBA concluded application of the ordinance was a matter for Respodent Town of Lake George Planning Board to resolve. The Planning Board, after expressly referencing the number of trees “up through the fence line,” conditionally approved the LaPlantes' application for site plan review. The Supreme Court dismissed Petitioner's Article 78 proceeding, finding the Planning Board's determination was rational and rejecting Petitioner’s contrary interpretation.
Petitioner argued that interpreting the ordinance was a purely legal question to which no deference to the Planning Board's interpretation was required. Though the ordinance required the view of the fence from the water be “filtered,” the Court found “filtered” was not functionally equivalent to “invisible.” Here, the Planning Board considered arguments by counsel for the respective parties and observations by one of its members, who personally visited the site and made specific reference to the number of trees along the fence line. Thus, the record as a whole provided a rational basis for the Planning Board's determination. In addition, further factors such as the staggered height of the fence, its positioning, and evidence of similar fences in the vicinity of petitioner's property further supported finding the Planning Board's conditional site plan approval was not arbitrary and capricious.
The case was Edscott Realty Corp. v Town of Lake George, 134 A.D.3d 1288 (App. Div. 2015).