On June 3, 2020, following oral argument by Z&S Partner Jody Cross, the Appellate Division, Second Department rendered 2 companion Decisions & Orders overturning the Orange County Supreme Court’s denial of Petitioners’ challenges to approvals issued by the Town of Warwick ZBA and Planning Board, respectively. The approvals were granted to Black Bear Family Campground (“BBFC”) in connection with BBFC’s attempts to legalize its prior expansion of the campground, which more than doubled the permitted 74 campsites for campers and tents, to more than 154 campsites for big-rig RVs on parking pads with utility hookups, all in violation of the Town’s Zoning Code and BBFC’s prior approvals.
The Second Department annulled the ZBA’s issuance of a 100% variance, which eliminated the mandated 100-foot setback and allowed BBFC to maintain 30 RV pads along the residentially zoned property line shared with Petitioners. Holding that the variance was “arbitrary and capricious and an abuse of discretion,” the Court found that the prior illegal placement of RVs within the 100-foot setback “cannot support the issuance of an area variance,” and that the ZBA improperly applied the variance statutory balancing factors under N.Y. Town Law. In addition, the Court held that the ZBA’s “failure to review the area variance request in the context of the overall campsite expansion project constituted an improper segmented review” under SEQRA.
The Court also annulled approvals granted by the Planning Board, holding that the “Planning Board failed to comply with SEQRA in adopting the negative declaration,” and that the “Planning Board failed to adequately assess and consider the potential environmental impacts of the construction and expansion of the campground from 74 campsites to 154 campsites.” The Court also held that a so-called Development Agreement that had been entered into between the Town and BBFC as an attempt to remedy years of violations by BBFC “constituted illegal contract zoning,” because the agreement “committed the Town to a specific course of action with respect to a zoning amendment.”
Copies of the Second Department’s Decisions & Orders relating to the ZBA and Planning Board can be found here and here, respectively.
