                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 10, 2015                   520841
________________________________

In the Matter of EDSCOTT
   REALTY CORP.,
                    Appellant,
      v

TOWN OF LAKE GEORGE PLANNING                MEMORANDUM AND ORDER
   BOARD,
                    Respondent,
      and

CHARLES LaPLANTE et al.,
                    Respondents.
________________________________


Calendar Date:   October 13, 2015

Before:   Lahtinen, J.P., Garry, Egan Jr. and Clark, JJ.

                             __________


      Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (John
D. Wright of counsel), for appellant.

      Caffry & Flower, Glens Falls (John W. Caffry of counsel),
for Charles LaPlante and another, respondents.

                             __________


Egan Jr., J.

      Appeal from a judgment of the Supreme Court (Krogmann, J.),
entered June 16, 2014 in Warren County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent Town of Lake
George Planning Board granting conditional site plan approval to
respondents Charles LaPlante and Veronika LaPlante.
                              -2-                520841

      Petitioner is the owner of certain real property located
along the western shore of Lake George in the Town of Lake
George, Warren County, upon which petitioner operates the
Olympian Village Motel. Respondents Charles LaPlante and
Veronika LaPlante own an adjacent parcel of land to the north of
petitioner's property upon which they operate a motel known as
the Stepping Stones Resort. The properties in question are
separated by a stockade fence – the existence and height of which
has been the subject of prior litigation. Insofar as is relevant
here, the LaPlantes applied for and were granted an area variance
by the Town of Lake George Zoning Board of Appeals (hereinafter
ZBA) to make certain modifications relative to the height of the
existing fence, which extends approximately 534 feet from the
shoreline of Lake George to State Route 9N. Supreme Court
subsequently upheld the ZBA's issuance of the subject variance,
but remitted the matter for consideration and application of Code
of the Town of Lake George § 175-23, which establishes a
Shoreline Overlay District and addresses, among other things, the
screening requirements for all structures located within 300 feet
of the mean high-water mark of Lake George. Upon remittal, the
ZBA concluded that application of the cited ordinance was a
matter for respondent Town of Lake George Planning Board to
resolve.

      The LaPlantes then applied for site plan review – setting
forth the existing number of trees along the fence line and
describing the vegetation already in place. The Planning Board –
after expressly referencing the number of trees "up through the
fence line" – conditionally approved the LaPlantes' application,1
prompting petitioner to commence this CPLR article 78 proceeding
to challenge the Planning Board's determination. Supreme Court
dismissed petitioner's application and, in so doing, rejected
petitioner's interpretation of the screening requirements and
found that the Planning Board's determination was in all respects
rational. This appeal by petitioner ensued.



    1
        Such approval was subject to a requirement that the
portion of the fence that extends onto the LaPlantes' dock be
replaced with a less visually obstructive railing.
                              -3-                520841

      Code of the Town of Lake George § 175-23 (D) (3) provides
that "[a]ll structures, including accessory structures, except
docks and boathouses that are within 300 feet of the mean high-
water mark of Lake George shall be screened by vegetation or
landscaped in such a way so that the view of the structures from
the water is filtered and the visual impact minimized. This
screening will be of a buffer type B as described in the
landscape and screening provisions of the commercial design
guidelines, unless otherwise prescribed by the Planning Board.
The intent of these regulations is to provide a filtered view to
promote a see-out-not-in policy." A type B buffer, in turn,
requires a minimum landscaped width of 20 feet with three trees
(at least six feet in height) per 100 linear feet of buffer (see
Code of Town of Lake George § 175, Appendix I, § 8.2.8.2, Table
3).

      Petitioner initially argues that interpretation of the
cited ordinance presents a purely legal question to which no
deference to the Planning Board's interpretation is required and,
as the Planning Board granted conditional site plan approval
without requiring the installation of any screening on the south
side of the subject fence, its determination in this regard
necessarily was arbitrary and capricious. We disagree. Although
the ordinance indeed requires that the view of the fence from the
water be "filtered," contrary to petitioner's assertion,
"filtered" is not the functional equivalent of "invisible."
Similarly, the directive that the visual impact of the fence be
minimized does not require that it be eliminated altogether.
Further, nothing on the face of Code of the Town of Lake George
§ 175-23 (D) (3) or the accompanying design guidelines mandates
that the screening requirements embodied therein be applied to
both sides of the fence. Rather, it is apparent that the
relevant inquiry is whether – taken as a whole – the view of the
fence from the water has been sufficiently filtered and the
visual impact thereof has been adequately minimized. This, in
turn, is precisely the type of subjective, fact-based
determination to which we accord the Planning Board's findings
"great deference" (Matter of Erin Estates, Inc. v McCracken, 84
AD3d 1487, 1489 [2011] [internal quotation marks and citation
omitted]; see Matter of New York Botanical Garden v Board of
Stds. & Appeals of City of N.Y., 91 NY2d 413, 420-421 [1998]).
                              -4-                520841

      Here, in addition to the documentation contained in the
LaPlantes' site plan application, which included a summary of the
area variance previously granted, a description of the existing
trees and vegetation along the fence line and various maps,
drawings, surveys and photographs of the LaPlantes' property, the
Planning Board considered the arguments made by counsel for the
respective parties, as well as the observations made by one of
its members, who personally visited the site and made specific
reference to the number of trees along the fence line. In light
of these submissions and findings, the record as a whole provides
a rational basis for the Planning Board's determination.
Notably, the plain language of Code of the Town of Lake George
§ 175-23 (D) (3) affords the Planning Board some measure of
discretion relative to the subject screening requirements, and it
is not the role of the courts to second-guess reasoned
administrative determinations that otherwise find support in the
record (see Matter of Schaller v Town of New Paltz Zoning Bd. of
Appeals, 108 AD3d 821, 823 [2013]; Matter of Frigault v Town of
Richfield Planning Bd., 107 AD3d 1347, 1350 [2013]; Matter of
Druyan v Village Bd. of Trustees of the Vil. of Cayuga Hgts., 96
AD3d 1207, 1208 [2012]).

      To the extent that petitioner's challenge to the type and
height of the fence itself falls within the scope of the Planning
Board's grant of conditional site plan approval, we again discern
no basis upon which to disturb the Planning Board's
determination. The purpose of site plan review "is to allow the
proper integration into the community" of various uses and
structures – specifically with respect to the impact of such uses
and structures upon the "surrounding properties," as well as "the
natural, historic and scenic resources" of the community (Code of
Town of Lake George § 175-36 [B], [C]). To that end, the zoning
provisions require that the size, shape, color and material of
the structure at issue – here, the stockade fence – "be
consistent with the character of neighboring buildings" and "in
harmony with the landscape character" (Code of Town of Lake
George § 175-43 [F] [3], [4]). Here, in light of the staggered
height of the fence, the positioning of its "good side" and the
Planning Board's modification relative to the portion of the
fence closest to the lake, together with the record evidence
documenting the existence of similar fences in the immediate
                              -5-                  520841

vicinity of petitioner's property, we agree with Supreme Court
that the Planning Board's grant of conditional site plan approval
was not arbitrary and capricious. Petitioner's remaining
contentions, as well as the LaPlantes' request for costs under 22
NYCRR 130-1.1 (a), have been examined and found to be lacking in
merit.

     Lahtinen, J.P., Garry and Clark, JJ., concur.



     ORDERED that the judgment is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
