                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   July 21, 2016                   518770
                                                       522059
________________________________

In the Matter of JOHN A.
   LAVENDER II,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

ZONING BOARD OF APPEALS OF THE
   TOWN OF BOLTON,
                    Respondent,
                    et al.,
                    Respondents.
________________________________


Calendar Date:   June 3, 2016

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

                             __________


     John A. Lavender II, Bolton Landing, appellant pro se.

      Muller, Mannix & Reichenbach, PLLC, Glens Falls (Michael J.
Muller of counsel), for Zoning Board of Appeals of the Town of
Bolton, respondent.

                             __________


Peters, P.J.

      Appeals (1) from a judgment of the Supreme Court (Krogmann,
J.), entered June 20, 2013 in Warren County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent Zoning Board
of Appeals of the Town of Bolton interpreting the Town's zoning
code as excluding petitioner's use of his property as an event
venue, and (2) from an order of said court, entered September 21,
2015 in Warren County, which, among other things, denied
petitioner's motion for reconsideration.
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      Petitioner owns a parcel of real property overlooking Lake
George in the Town of Bolton, Warren County. Known as Highlands
Castle, the property is situated within a low-density residential
zoning district and is improved by, among other things, a two-
bedroom residence. Beginning in 2010, petitioner advertised
Highlands Castle on the Internet as a venue for weddings,
corporate meetings, social gatherings and other special events.
In its online media, the property was described as a "perfect
setting for a special gathering with family and friends" or "any
other meaningful 'experience' you can envision." Highlands
Castle's website also set forth a list of preferred wedding
planners, caterers, photographers, videographers, florists and
other similar vendors to be used in connection with the venue
rental.1

      In response to complaints from neighboring homeowners
regarding petitioner's use of the property, the Town's Zoning
Administrator issued a determination in March 2012 finding that
petitioner's rental activities did not violate the Town Code. An
appeal ensued and, following a public hearing in June 2012,
respondent Zoning Board of Appeals of the Town of Bolton
(hereinafter the ZBA) overturned the determination. Petitioner
thereafter commenced this proceeding seeking to annul the ZBA's
determination. Supreme Court, finding the record inadequate to
permit meaningful review, remanded the matter to the ZBA for a
written determination as to the specific findings made and relied
upon in reaching its determination. Thereafter, the ZBA set
forth the reasons for its prior determination which included, as
relevant here, its finding that the activities conducted at
Highlands Castle are commercial in nature and are not customarily
associated with the use of a single-family dwelling. In June


     1
        Notably, while petitioner asserts that he only recommends
but does not engage vendors, one of his advertisements offers
that "[o]ur professional photographs will capture the memories
you share" and states that, "whatever you can imagine, we can
provide." In that same advertisement, wedding ceremonies were
offered with or without an hor d'oeuvre hour and reception
dinner.
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2013, Supreme Court, finding such reasons sufficiently supported
by the record, dismissed the petition.

      Undaunted, petitioner continued his rental activities,
prompting the issuance of a temporary restraining order
prohibiting him from using the property contrary to the ZBA's
determination. Petitioner then moved by order to show cause to
vacate the temporary restraining order, raising various
challenges to both the ZBA's determination as well as Supreme
Court's June 2013 order. After that motion was denied,
petitioner filed a motion seeking, among other things,
reconsideration and to consolidate this proceeding with a prior
enforcement action brought by the Town. By order entered in
September 2015, Supreme Court denied that aspect of the motion
seeking to consolidate the matters and, treating his application
to reconsider as one to renew or reargue, denied that relief as
well. Petitioner now appeals from this order as well as the June
2013 judgment dismissing his petition.

       We first address petitioner's challenges to the ZBA's
determination that his rental activities violated the Town Code.
The Town Code generally limits the use of property situated in
the relevant RL-3 district to "single-family residence[s]" and
"[a]ccessory uses" (Code of the Town of Bolton § 200, Attachment
4). "Single-family dwelling" is defined as "[a] detached
building (not including a mobile home) of one or more stories in
height, above grade level, which is designed or used exclusively
as living quarters for one family or household" (Code of the Town
of Bolton § 200.8 [A]). An "accessory use" is "[a]ny use of a
structure, lot or portion thereof, that is customarily incidental
and subordinate to and does not change the character of a
principal land use" (Code of the Town of Bolton § 200.8 [A]).
There is no dispute that the physical structure situated on
petitioner's property falls squarely within the definition of
single-family dwelling. Thus, the issue distills to whether
petitioner's use of the property as a venue for weddings,
receptions and other events constitutes an "accessory use" within
the meaning of the Town Code.

     A zoning board's interpretation of a local zoning ordinance
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is afforded deference and will only be disturbed if irrational or
unreasonable (see Matter of Meier v Village of Champlain Zoning
Bd. of Appeals, 129 AD3d 1364, 1365 [2015]; Matter of Albany
Basketball & Sports Corp. v City of Albany, 116 AD3d 1135, 1137
[2014], lv denied 23 NY3d 917 [2014]). While there is a
well-recognized exception to this rule where the issue presented
is one of pure legal interpretation of the underlying zoning law
or ordinance in question (see Matter of Fruchter v Zoning Bd. of
Appeals of the Town of Hurley, 133 AD3d 1174, 1175 [2015]; Matter
of Salton v Town of Mayfield Zoning Bd. of Appeals, 116 AD3d
1113, 1113-1114 [2014]), "this exception does not apply in the
instant case, as the analysis of whether the proposed accessory
use is incidental to and customarily found in connection with the
principal use of the property is, to a great extent, fact-based"
(Matter of East Hampton Indoor Tennis Club, LLC v Zoning Bd. of
Appeals of Town of E. Hampton, 83 AD3d 935, 937 [2011]; see
Matter of Incorporated Vil. of Atl. Beach v Zoning Bd. of Appeals
of Town of Hempstead, 94 NY2d 842, 843 [1999]; Matter of New York
Botanical Garden v Board of Stds. & Appeals of City of N.Y., 91
NY2d 413, 420-421 [1998]). Further, "[t]he rule that a zoning
ordinance is to be strictly construed in favor of the property
owner is subject to the limitation that where[, as here,] it is
difficult or impractical for a legislative body to lay down a
rule which is both definitive and all-encompassing, a reasonable
amount of discretion in the interpretation of the legislative
direction may be delegated to an administrative body or official"
(Matter of Frishman v Schmidt, 61 NY2d 823, 825 [1984] [internal
citations omitted]; see Matter of La Russo v Neuringer, 105 AD3d
743, 743 [2013]; Matter of Sanantonio v Lustenberger, 73 AD3d
934, 935 [2010]). "Whether a proposed accessory use is . . .
incidental to and customarily found in connection with the
principal use depends on an analysis of the nature and character
of the principal use of the land in question in relation to the
accessory use, taking into consideration the over-all character
of the particular area in question" (Matter of New York Botanical
Garden v Board of Stds. & Appeals of City of N.Y., 91 NY2d at 420
[citation omitted]).

      The ZBA found that, given the manner in which petitioner
utilized and marketed Highlands Castle as a venue for weddings
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and other large social gatherings, the challenged use was neither
subordinate nor customarily incidental to the primary single-
family residential use of the property. On this record, we
cannot say that such determination is either irrational or
unreasonable. Petitioner insists that Highlands Castle is held
out merely for residential rental use, yet the record belies such
a claim. In offering Highlands Castle for rent, petitioner
emphasized its availability for weddings, large parties and other
social receptions. Notably, the property was marketed as
available on a daily or even a "half-day" basis and was
advertised upon a pricing structure specific to the type of event
that may be of interest to the consumer and, in some instances,
to the number of individuals that will be attending. The
marketing of Highlands Castle thus evinces a clear intent to
target a rental audience that sought more than just residential
use of the property and, indeed, no evidence was presented that
Highlands Castle had ever been rented out for use as a single-
family residence. To the contrary, the evidence shows that
Highlands Castle was rented eight times over the course of a
roughly two-year period for large-scale events – including three
weddings and an American Bar Association function. Further,
given that the property is advertised for rent on a year-round
basis without restriction as to availability, nothing prevents
its regular use as an event venue on a more frequent basis than
that which has previously occurred.

      In light of this proof, the ZBA could rationally conclude
that petitioner's activities in promoting and renting Highlands
Castle as an event venue were neither incidental nor subordinate
to the property's residential use (see Burton v Glynn County, 297
Ga 544, 547 [2015]; DiGiovanni v Pope, 2012 WL 259977, *15, 2012
Mass LCR LEXIS 1, *37, 41-42 [Mass Land Ct 2012]). In other
words, the record supports the finding that "the business tail is
wagging the residential dog" (Keseling v Baltimore, 220 Md 263,
269 [1959]), rather than vice versa. Furthermore, during the
public hearing, neighboring property owners testified that events
held at Highlands Castle generated increased traffic, created
overcrowded private roadways and often involved amplified music
and announcements, which interfered with their enjoyment of their
own nearby homes. These adverse impacts, which extended well
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beyond the boundaries of petitioner's property, further support
the ZBA's finding that the large-scale events hosted at Highlands
Castle were not merely incidental (see 7 Rohan, Zoning and Land
Use Controls, § 40A.03 [1] [the purpose of the "incidental"
requirement is clear; so long as the use "is a secondary one,
conducted on a small scale relative to the principal use, it will
presumably not harm – or inflict only minimal harm upon – other
residential users"]).

      Perhaps most critically, petitioner failed to proffer any
evidence demonstrating that his use of Highlands Castle is
consistent with the customary use of residential property by
other homeowners in the Town (compare Matter of New York
Botanical Garden v Board of Stds. & Appeals of City of N.Y., 91
NY2d at 421-422, 424). No showing has been made that the rental
of residential single-family dwellings for weddings and large
gatherings is a common occurrence or, if so, that such events are
of similar frequency, size and intensity as those at issue here
(see Burton v Glynn County, 297 Ga at 548; Forster v Town of
Henniker, 167 NH 745, 759 [2015]; DiGiovanni v Pope, 2012 WL
259977 at *15, 2012 Mass LCR LEXIS 1 at *42-43). Thus, the
determination that the proposed accessory use is not customarily
found in connection with the principal use of the property is,
too, supported by a rational basis in the record.

      This is not to say that the occasional use of a residential
property for a wedding or similar large-scale event would not be
permissible as an accessory use to the principal single-family
residential use permitted in an RL-3 district. On an isolated
basis, it would be difficult to conclude that the hosting of such
an event would not be incidental and subordinate to the permitted
residential use of a single-family dwelling. However, the ZBA
found that there was something "inherently different" about
petitioner's use of his property that transgressed that expected
or customary for a single-family dwelling in a residential low
density district and "justif[ied] treating it differently"
(Matter of New York Botanical Garden v Board of Stds. & Appeals
of City of N.Y., 91 NY2d at 421). Inasmuch as that determination
is both rational and reasonable, it will not be disturbed.
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      Petitioner's remaining contentions do not require extended
discussion. His constitutional claims and procedural challenges
to the ZBA's determination were not raised in his CPLR article 78
petition and, therefore, are unpreserved for our review (see
Matter of Town of Rye v New York State Bd. of Real Prop. Servs.,
10 NY3d 793, 795 [2008]; Gregory v Town of Cambria, 69 NY2d 655,
656-657 [1986]; Matter of Meyer v Zoning Bd. of Appeals of City
of Utica, 139 AD3d 1406, 1407 [2016]). To the extent that
petitioner's motion for "reconsideration" was deemed one to
reargue, the denial thereof is not appealable (see Schillaci v
Sarris, 122 AD3d 1085, 1087 [2014]). If viewed as one to renew,
the motion was properly denied inasmuch as petitioner did not
offer a reasonable justification for his failure to submit the
new facts in the initial motion to vacate or demonstrate that
such facts would have changed the prior determination (see CPLR
2221 [e] [2], [3]; Leonard v Planning Bd. of Town of Union Vale,
136 AD3d 873, 874-875 [2016]; Tibbits v Verizon N.Y., Inc., 40
AD3d 1300, 1303 [2007]). Finally, Supreme Court providently
exercised its discretion in denying petitioner's motion to
consolidate (see CPLR 602 [a]; Fidelity Natl. Tit. Ins. Co. v
Altshuler Shaham Provident Funds Ltd., 120 AD3d 1135, 1136
[2014], lv dismissed 25 NY3d 1036 [2015]).

     Lahtinen, Egan Jr., Rose and Clark, JJ., concur.
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      ORDERED that the judgment and order are affirmed, without
costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
