Petitioners, who have owned property adjoining the North Pole Campground (“the Camp”) since the 1990s, wrote a series of letters to the Town of Wilmington Zoning Board of Appeals (“ZBA”) claiming the Camp has failed comply with the Town’s zoning ordinances.  Petitioners claimed that (1) tents and recreational vehicles at the Camp are not properly screened from the public's view and are eyesores, (2) noise from the camp is disturbing, and (3) the Camp has failed to comply with setback, screening, and minimum square footage requirements for individual campsites. 

In response, the Code Enforcement Officer informed Petitioners the Camp was a nonconforming use and that he did not intend to take any action against it.  Petitioners filed an appeal with the ZBA, which was denied after a hearing in June 2013.  Petitioners then commenced a CPLR Article 78 proceeding, claiming the ZBA failed to give the public adequate notice of the June 2013 hearing.  The trial court agreed and remitted the matter to the ZBA for a new public hearing without addressing the merits, and on a properly noticed rehearing the ZBA once again denied the Petitioner’s appeal.  Petitioners appealed the ZBA’s decision to the Supreme Court, which dismissed the petition.  Petitioners then appealed the matter to the appellate division.

On appeal, the Appellate Division, Third Department first noted that to the extent Petitioners sought to compel the code enforcement office to enforce the Town's ordinances, “it is in essence a request for relief in the form of mandamus (see CPLR 7803[1]),” a form of relief “which does not lie to compel the performance of such a discretionary function.”  Turning to the merits, the Court found that the record shows that the Camp has been functioning since the 1960s, predating the enactment of the zoning ordinances in question.  Accordingly, the operation of the Camp a permissible nonconforming use. 

Furthermore, the Court found that the Camp had complied with the Town’s zoning ordinances, notwithstanding that it was not required to do so. The code enforcement officer had measured the campsites and found they all met the minimum area and screening requirements.  He also found that the RVs complained of were owned by the campsite owner and that the ordinance permitted the storage of personal RVs for up to 15 consecutive months.  Finally, the code enforcement officer found that because the tent campsites used by RVs had water and electricity access, the use by RVs was permitted. The Court therefore concluded that the ZBA's determination had a rational basis and affirmed the Supreme Court’s dismissal of the appeal.

The case was Cooney v. Town of Wilmington Zoning Bd. of Appeals, 140 A.D.2d 1350 (3d Dep’t 2016).