Third Department Reverses Decision Denying Special Use Permit for Dog Training Business

Petitioner owned property on which she operated a dog training and handling business in the Town of Hoosick. Following a noise complaint from a neighbor, the Code Enforcement Officer of the Town of Hoosick (“CEO”) determined Petitioner’s use of the property violated the Town’s Land Use Law and that a special use permit and site plan approval were needed. Petitioner submitted the required applications, but the ZBA denied them both, citing the current and foreseeable impact of dog noise on the neighbors. Petitioner then commenced a CPLR Article 78 proceeding to review the determination.  The Supreme Court dismissed the petition, and Petitioner appealed.

On appeal, Petitioner first argued that the Supreme Court erred in holding that she was required to obtain a special use permit and site plan approval, as her business involved operating a boarding kennel and breeding kennel, both uses permitted by right. However, the application for site plan approval described the intended use as a “training + handling center for show dogs.”  Thus, the Court found that since Petitioner’s use of the property did not fit within the definitions of boarding kennel or breeding kennel, the ZBA properly determined that she was required to obtain a special use permit.

Petitioner next argued that site plan review was not required because the use began in 2006, predating both the 2009 enactment of the Land Use Law and 2014 version of the site plan review law. The Court found that this argument was also without merit, as having a protected interest when the 2009 Land Use Law was enacted required petitioner to have received site plan approval under the 2001 Site Plan Review Law. Here, Petitioner never applied for or received site plan approval, and thus her use was not a lawful nonconforming use.  In addition, her proposal would expand the scope of the use, in terms of both staff and number of dogs, thus triggering the requirement for site plan approval.

Despite these holdings, the Court still reversed the lower court’s decision.  The ZBA found that Petitioner had failed to offer sufficient mitigation for the dog noise from her business.  However, Petitioner offered scientific measurement of the noise level, while there was no other objective measurement offered at the public hearing.  Moreover, the neighbor’s recording could be subjectively interpreted due to the ability to control the volume of the recording, making reliance on it unreasonable. Absent evidence rebutting Petitioner’s measurement of the sound level and offer to address any noise concerns, the Court found that there was no basis in the record to find that Petitioner did not comply wtih the Land Use Law. Accordingly, the judgment was reversed and the matter was remitted to the ZBA to grant a special use permit and site plan approval.

The case was Blanchfield v Town of Hoosick, 149 A.D.3d 1380 (3d Dep’t 2017). 

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