Last month, the Appellate Division, Second Department, issued two interesting opinions concerning parking. One involved a parking variance and the other involved a restrictive covenant.

Here are the details!

No Parking

In Bonefish Grill, LLC v Zoning Board of Appeals of the Village of Rockville Centre, 2017 N.Y. Slip Op. 006643 [2d Dept September 27, 2017], a restaurant leased property at 340 Sunrise Highway. It was going to demolish an existing structure and replace it with a 5,400 square foot restaurant. The Village Zoning Code required 54 off-street parking spaces for the proposed restaurant. It had none.

The same landlord owned the adjoining property, 330 Sunrise Highway. The restaurant tenant proposed a merger of the two lots in order to take advantage of an exception in the Village Zoning Code that essentially allowed a municipal lot to substitute for the off-street parking for “interior restaurants that abut municipal parking fields.” The 330 Sunrise Highway parcel abutted a municipal parking lot, 340 Sunrise Highway did not.

A building permit was issued for the restaurant based on the merger representation. Just as the construction was nearing completion, the Building Department learned the merger of the two parcels never occurred. The Building Department refused to issue a certificate of occupancy until the restaurant obtained a parking variance. The restaurant entered into a license agreement that gave it access to 40 exclusive parking spaces next door from 4 PM to 12:30 AM weekdays. The parking variance was granted by the zoning board but the board imposed restrictions on the restaurant’s operating hours, tying them to the hours in the license agreement. It also required mandatory valet parking. The restaurant was unhappy with these restrictions and sued.

Although the restaurant prevailed at the trial level, it lost at the appellate court, which found that limiting the hours of operations to coincide with its access to the 40 parking spaces was proper. The restriction was aimed at protecting surrounding businesses and the expected increase in traffic congestion and parking problems.

Parking

In Fleetwood Chateau Owners Corp., v Fleetwood Garage Corp., 2017 NY Slip Op. 06431 [2d Dept September 13, 2017], the owner of an apartment building sued a commercial parking garage located on an adjoining parcel to enforce a restrictive covenant contained in a 1924 deed. That restrictive covenant prohibited the construction of nonresidential structures including garages unless the garages were for the exclusive use of occupants of any building built on the property.

In 1929, an apartment building was built on one part of the property. In 1931, a private parking garage was built on another part of the property. The entire site was sold at least twice after that. When the entire site was sold in 1988, the deed failed to mention the 1924 restrictive covenant.

The next purchaser subdivided the property. In 1990, the apartment building portion of the property was sold to Fleetwood Chateau Owners Corp. In 1991, the parking garage portion of the property was sold to Fleetwood Garage Corp. which intended to use it as a commercial parking garage.  Neither of these deeds referenced the 1924 restrictive covenant. Neither Fleetwood entity was a party to the 1924 deed nor mentioned in it as a beneficiary.

The Court noted that restrictive covenants, which place restraints on servient properties in favor of dominant parcels, are strictly construed against parties seeking to enforce them as they encumber the use of real property. The Court further noted that since it was not a party to the 1924 deed and was not mentioned in the deed as a beneficiary, Fleetwood Chateau Owners Corp. had to demonstrate the existence of a common plan or scheme of building development in order to enforce the restrictive covenant.

The Court found that there was no common development plan created for the owners of the subdivided lots.   The Court found no evidence that in 1924, when the land was sold as one parcel, that there was any obligation to subdivide the site. As a result, the Court found that “the covenant cannot be said to have benefitted any part of the land burdened by it.” The Court reasoned that the common grantor to the Fleetwood entities had owned the entire site and was free to do whatever it chose with the property except as against the 1924 grantee who had placed the restriction in the 1924 deed or those that “stood in his shoes.” As the Fleetwood entities solely derived their interest from the 1990/1991 grantee, and their deeds did not contain any restrictive covenant, “the original covenant is not enforceable as between” them. As a result, Fleetwood Chateau Owners Corp. had no standing to enforce the covenant and the parking garage was able to continue operating.

Note:  Law clerk Joanna Lima assisted in drafting this blog post.

Courts have recently expanded what constitutes religious conduct. In particular, in Matter of Sullivan v. Board of Zoning Appeals of City of Albany, 144 A.D. 3d 1480 (3d Dep’t 2016), an appellate court ruled that the use of a portion of a church parsonage for a “home base” for up to 14 homeless individuals was a permissible use of a “house of worship.”

Respondent Bethany Reformed Church owned certain real property, including a sanctuary, an educational and social building, a parsonage, and a parking lot, all of which were located adjacent to petitioner’s property. The properties were located in a residential district, which permitted, among other uses “houses of worship.” The Code of the City of Albany defined “houses of worship” as “a structure or part of a structure used for worship or religious ceremonies.”

The Church advised the City of its desire to partner with a not-for-profit corporation to establish a “home base” for up to 14 homeless individuals who were not attending school, enrolled in training programs or working at their current jobs. The City’s Building Department told the Church that it needed a use variance or special use permit as the proposed use did not appear to be for a religious purpose.   The Church then sought an interpretation from the Board of Zoning Appeals as to whether this intended use was permitted within the zoning district. The Board found that the Church’s intended use was consistent with “the mission and actions of a house of worship…” and did not require a variance or special use permit.  Petitioner brought a proceeding to annul the Board’s determination.

The Supreme Court, County of Albany, did not agree with the Board’s interpretation and annulled the Board’s decision, finding that the proposed use for the parsonage was not reasonably consistent with the term, “house of worship.” The Church appealed.  The Appellate Division reversed the decision of the Supreme Court, noting that, generally, “a zoning board’s interpretation of a zoning law [] is afforded great deference and will only be disturbed if it is irrational or unreasonable.”  An exception to this standard is where the issue is a pure legal interpretation of the zoning law.  Moreover, where a term is not defined by a zoning law, courts can apply the term’s ordinary meaning and that “any ambiguity in the language employed must be resolved in favor of the property owner.”

The Third Department first explained the rules applicable to judicial deference of municipal decisions, whether the issue presented was fact-based warranting judicial deference to the Board’s interpretation or a pure legal question excepting such deference.  Interestingly, the Appellate Division did not apply these rules in its reversal of the lower court.  The Appellate Division held that, regardless of the analytical approach, the Board’s interpretation should be upheld.  The Court noted that the term “worship” was not defined in the applicable zoning law, so the Appellate Division chose to use its ordinary meaning. The Court, relying on the dictionary meaning of the term, determined that the ordinary meaning of “worship” is defined as “any form of religious devotion, ritual, or service showing reverence – especially with respect to a divine being or supernatural power” and also includes “an act of expressing such reverence.” Noting that previous courts have been flexible in their interpretation of religious uses under zoning ordinances and did not limit religious uses solely to mean a house of prayer, the Court found that services to homeless individuals constitute religious conduct because acts of charity play a significant role in religious worship.

Measuring the height of a structure may seem straightforward in the abstract, but sometimes in practice that is not the case. Take, for instance, a recent Southampton Town Zoning Board application – Matter of the Application of Hermann – where the height of a house was the subject of a challenge in front of the Zoning Board.

During construction of a residential dwelling, several stop work orders were issued and lifted based upon evidence submitted to the Building Inspector from different surveyors attempting to determine the height of the single family dwelling. Mostly the argument surrounded an interpretation of the term “average natural grade”, which is the point of measurement on the ground in Southampton. This case was complicated by two factors. First, the property was disturbed from the construction of a prior dwelling demolished to make way for the new dwelling. During the demolition the grade was lowered to accommodate a larger basement. Second, there was a ten foot change in slope from one side of the house to the other.

SOUTHAMPTON TOWN ZONING CODE

Southampton Town Zoning Code provides specific guidance for measuring the height of a structure in §330-5 “Definitions” which defines “Height of a Structure”. Section B of that definition states:

“In all other cases, the vertical distance measured from the average natural elevation of the existing natural grade (before any fill has been or is proposed to be placed thereon) as established on a plan prepared by a licensed professional surveyor, at and along the side of the building or structure fronting on the nearest street to the highest point of the highest roof or, in the case of a structure, to the highest point. On all flag lots and lots utilizing a right-of-way, the flagpole access or right-of-way shall be considered the street front.” (Emphasis added)

So, the challenge to the property owner was twofold:

  1. Determine a reasonable methodology to establish “average natural grade” on a previously disturbed lot; and
  2. Apply that methodology to a property that contained a significant slope.

PRIOR ZONING BOARD DECISIONS

Fortunately, the Zoning Board had decided two previous cases involving height variances that centered on determining average natural grade. In the Matter of the Application of Schwartz, the Board initially observed that determining the average natural grade of a parcel of property was an inexact science. Next, the Board determined that using spot elevation data and the Topographic Map of the Five Eastern Towns was a reasonable methodology in determining average natural grade. Finally, the Board determined that a single measurement or data point along a building line was insufficient and that at least two data points must be used to determine average natural grade which would then be the basis on which to measure height.

Approximately a year and a half later, the Zoning Board decided a similar application, the Matter of the Application of Rubin. In Rubin, the Board followed Schwartz by making these findings:

  • Measuring contours and topography is an inexact science.
  • Site specific topographical data is the most accurate piece of information necessary to determine average natural grade.
  • Interpolation of data derived from survey maps and site-specific topographical data is a reasonable way to determine grade issues.

STANDARD

Applying the findings in Schwartz and Rubin, site-specific elevation data combined with the most recent contour mapping available will allow a licensed surveyor to determine contour lines and use these contour lines to determine height.

APPLICATION TO HERMANN

The property owner in Hermann engaged a surveyor who used the following data to determine average natural grade:

  • 1956 Topographical Map prepared by the U.S. Coast Guard
  • 1973 Photographs of Original Foundation under Construction
  • 1974 Five Eastern Towns Topographical Map
  • Actual field data
  • 2007 LiDAR Contour Map
  • 2012 LiDAR Contour Map
  • Field Observation of Surrounding Topography of adjacent lot
  • 2015 Under Construction Photographs of the Current Foundation
  • Actual Height Measurement

Using that information, the surveyor made a determination that the house exceeded the permitted height, and the property owner had to obtain a variance. The request for relief was significantly less than that alleged by the neighbor, and the variance request was ultimately granted. In the Hermann decision, the Board found that the methodology used by the property owner’s surveyor to be the most meaningful and likely accurate because it incorporated the above data.

CONCLUSION

To determine the height of a building – at least in Southampton – a surveyor must consider all of the data available, especially when the property is already disturbed. It is also suggested that a property owner or surveyor provide the Building Inspector with the methodology used to determine average natural grade in advance of construction, so violations of height restriction are avoided.

unanimous-cartoon

Generally, when a majority of the members of a zoning board of appeals (ZBA) either votes in favor of or against an action, the board is considered to have acted.  What if a ZBA is unable to take any kind of majority action, ending up with a tie vote?  The result hinges on the dual jurisdictions many ZBAs enjoy.

All ZBAs are directly given appellate jurisdiction by state law; however, where a local law or ordinance grants a ZBA additional powers, the additional powers are referred to as “original jurisdiction.”  Examples of a ZBA’s original jurisdiction include the power to grant special use permits.

In Tall Trees Construction Corp. v. Zoning Board of Appeals of the Town of Huntington, 97 NY2d 86 [2001], the Court of Appels  determined the effect of repeated tie votes by the Town of Huntington ZBA for variances.  The court held that “when a quorum of the Board is present and participates in a vote on an application, a vote of less than a majority of the Board is deemed a denial.”

This conclusion led the Legislature, in 2002,  to codify an amendment to Town Law § 267-a that added a new subsection entitled “Voting requirements.”  In particular, Town Law 267-a(13)(b) states:

“Default denial of appeal. In exercising its appellate jurisdiction only, if an affirmative vote of a majority of all members of the board is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision or determination of the enforcement official within the time allowed by subdivision eight of this section, the appeal is denied….” (emphasis added).

So, what happens when a ZBA casts a tie vote in an application for a special use permit?  Nothing, according to the Third Department’s recent decision in Matter of Alper Restaurant Inc. v. Town of Copake Zoning Board  Of Appeals, 2017 NY Slip Op 02871 [3d Dept 2017].  In Alper, the Court affirmed the Supreme Court’s decision that a 2-2 vote issued for a special use permit was a non-action, because there was no majority vote; and the ZBA was exerting its original jurisdiction over the applicant’s special use permit.  This enabled the ZBA to vote again on the same matter and grant it with a 3-2 vote.

Thus, an appeal or variance is considered to be denied by statute if a tie vote is cast when considering a variance. This is not so when the same board is voting on a special use permit.  A tie vote in connection with a special permit results in a non-action.  This begs the question of whether ZBA’s voting multiple times on special use permits is the desired result?

two housesOn April 5, 2017, in an Article 78 proceeding, Tavano v. Zoning Board of Appeals of the Town of Patterson, 2017 NY Slip Op 02661, the Second Department reversed a trial court decision and reinstated a decision of the Zoning Board of Appeals of the Town of Patterson.  The zoning board had granted petitioner Tavano’s application to establish a legal non-conforming use of a second building on his property, referred to as the “cottage.”

Tavano argued that the cottage located at his property was a leased residential dwelling and that its use preexisted the Town’s 1942 zoning ordinance, which provided that “a building, structure, or premises could be used as a rooming or boarding house so long as there were no more than three boarders or roomers.”  Id.

In reversing the trial court’s finding, the Appellate Division noted that petitioner owned property in Brewster that is improved with a single family dwelling constructed in 1947 and a cottage constructed in 1955.  Tavano lived in the single family dwelling and rented the cottage.

Although the Appellate Division did not affirmatively state that its decision rested on the fact that the cottage was constructed in 1955, well after the 1942 zoning ordinance was enacted, and thus, Tavano could not establish entitlement to a legal nonconforming use, the Court did state that “to establish a legal nonconforming use, a property owner must demonstrate that the allegedly preexisting use was legal prior to the enactment of the zoning ordinance that purportedly rendered it nonconforming.”

Here, and without benefit of the trial court opinion, it appears that the relevant question was not only whether the cottage was constructed prior to enactment of the 1942 ordinance, but also whether Tavano’s use of the cottage constituted use as a rooming or boarding house.

In reinstating the zoning  board’s decision, the Appellate Division relied upon the long-standing legal principle that ‘[t]he determination of a zoning board regarding the continuation of a preexisting nonconfirming use must be sustained if it is rational and supported by substantial evidence, even if the reviewing court would have reached a different result”

Consequently, and as all land use lawyers will attest, even if the trial court or reviewing court would have reached a different result than that zoning board, deference is to be afforded to the zoning board.  Finding that the “ZBA’s determination that the cottage did not constitute a rooming or boarding house under the 1942 zoning ordinance was not arbitrary or capricious”, the Appellate Division reversed the trial court and reinstated the zoning board’s decision.

The orientation of a tennis court in a north/south direction is a benefit to competitive players interested in fair tennis play. Even the Appellate Division, Second Department, agrees.

To avoid the impact of sun glare, a Town of Southampton property owner sought several variances to construct a tennis court in a north/south direction. One of the variances requested a 17-foot setback from the street where 90 feet is required.  (Southampton Town Code, Section 330-11.)   This variance would allow the tennis court to be situated in a north/south direction and thus avoid the impact of sun glare that would occur if situated in an east/west direction.

StockSnap_8ODE0WIMD9A neighboring property owner, located across the street, appeared at the public hearing and opposed the requested variances.  In reaching its 2014 determination to grant the variance application, the Southampton Board of Zoning Appeals found that the proposed tennis court was located 158 feet away from the opposing neighbor’s house and therefore would not create a detriment to the property owner or the surrounding neighborhood.

The Board also relied upon no less than eight (8) mitigating factors, including:

  • Proposed landscape screening;
  • Sinking the court into the ground by four feet, thereby mitigating potential noise impacts;
  • The alternative of constructing a 9,000 square foot house was far more impactful;
  • The goal of distancing the court from the immediately contiguous neighbors was more important than any perceived impact to the opposing neighbor located across the street.

Unhappy with the Zoning Board’s determination, the opposing neighbor commenced an Article 78 proceeding in addition to seeking a TRO and preliminary injunctive relief.  After considering the arguments, by Decision and Order dated May 19, 2014, the trial court (J. Garguilo) upheld the Zoning Board’s decision, while at the same time vacating the TRO and denying petitioner’s request for preliminary injunctive relief.   Petitioner’s attempt to appeal the denial of injunctive relief was dismissed by the Appellate Division as the Second Department held that “appeal from the intermediate order in this proceeding must be dismissed because the right of direct appeal therefrom terminated with the entry of a judgment dated November 10, 2014.”  Id.

By further decision of even date, the Appellate Division upheld the Zoning Board determination, finding not only  “there was no evidence that the granting of the variance would produce an undesirable change in the character of the neighborhood, have an adverse effect on physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community . . . [but also] the Zoning Board rationally concluded that the benefit sought by [the applicant}, namely, to maximize its use of the proposed tennis court, could not be achieved by the alternative site proposed by the petitioner.”  Id.

The Appellate Division made the above determinations despite the fact that it found that the variances requested by the property owner were substantial in nature and that the difficulty was self-created. This decision is important to those seeking to uphold a favorable variance grant in the wake of neighboring opposition because this decision demonstrates that focusing on the absence of, or minimal, undesirable change in a neighborhood and detriment to the health, safety, and welfare of a community can trump substantial variance requests, including those that are self-created in nature.

logo-colorBefore we blog our way into 2017, we wanted to take a moment to review the topics that we blogged about in 2016 and to remind our readers that the land use practice group at Farrell Fritz is a diverse group of attorneys, which is why the topics that we blog about are quite diverse.

For example, it is not uncommon for our practice group to be involved in a large-scale transactional development project, while at the same time, we are drafting or answering an order to show cause; drafting easement agreements; exploring an adverse possession claim; resolving environmental issues; preparing, presenting and defending applications; and litigating our way through a criminal zoning code violation.   Our diverse legal talents are reflected in the topics that we chose to blog about in 2016.

We started the 2016 blogging year, for example, discussing riparian rights, climate change,  e-waste regulationsPine Barrens credits and renewable energy.  As the spring and summer approached, we tackled summer rental laws and the controversial role that Air BnB plays in short-term rentals.  During this time, we also blogged about the increasing presence of Vape stores on Long Island and how municipalities are tackling Vape store land use regulations.

One very popular 2016 topic in the land use community focused on the use of Drones and Drone regulation.   We will, of course, follow this developing topic in 2017, so be on the lookout for our Drone updates.favicon

Likewise, and always a controversial land use topic, is the use of moratoriums. Last year we blogged about the Village of Patchogue’s and the Village of Sag Harbor’s use of moratoriums to slow Village development.   We also addressed the hot topic of “zombie houses” by discussing not only what a “zombie house” is, but also blogged about legislation at the state, county and local levels aimed at combating the increasing number of zombie homes and decreasing the negative impact that these homes have on our communities.

 And, always relevant topics in the land use arena, we blogged about easements, SEQRA, farmland preservation, special permits and variances, the Hamptons helicopter route, rezoning the East End in Moriches and Eastport, General Municipal Law 239-m referrals, and non-conforming uses.

Finally, no year in review would be complete without mention of Facebook and the pitfalls that all litigants face when they take to social media during the pendency of a  land use lawsuit.  Check out our post on the monetary and other sanctions that the Village of Pomona suffered.

The above is just a quick snapshot of the topics that we blogged about in 2016.   We will kick off 2017 next Monday, January 9, 2016 with our new year’s post by Charlotte A. Biblow, Esq.   We hope you enjoyed our year in review and that in the coming year, you will help us increase our readership by forwarding our posts to your colleagues and friends and inviting them to subscribe to our weekly blog by email.

Happy New Year to all.

hour-glassUnder New York State law, zoning boards and planning boards are authorized to impose reasonable and appropriate conditions  and restrictions on the grant of a variance or special permit, provided that they are directly related to, and incidental to, the proposed use of the property.  Such conditions shall be consistent with the spirit and intent of the zoning ordinance and shall be imposed for the purpose of minimizing any adverse impact such variance or special permit may have on the neighborhood community.  As a further limitation on the imposition of conditions, said conditions must also be authorized by the zoning ordinance.

In Matter of Ronald Citrin v. Board of Zoning and Appeals of Town of North Hempstead, 2016 NY Slip Op 06827 (2d Dept., October 19, 2016), the Town of North Hempstead Zoning Board of Appeals granted Petitioners’ application, brought pursuant to Town Code § 70-225(E), for a special permit.  The special permit sought to continue the use of a parking lot that was located adjacent to its restaurant and extended into the residentially-zoned portion of the Petitioner’s split-zoned lot.  The Zoning Board granted the Petitioner’s application to continue the use of the parking lot in the residence district, but imposed a five-year durational limit on the grant.

The Petitioners commenced a CPLR Article 78 proceeding, seeking to annul the five-year durational limit. After the Supreme Court denied the petition and dismissed the proceeding, the Appellate Division, Second Department, reversed and annulled the portion of the Zoning Board determination that imposed the five-year duration limit.  The appellate court found that the Zoning Board did not have the authority to impose a duration limit on the special permit because Town Code § 70-225(E) does not explicitly provide the Board with the authority to impose durational limits upon permits granted pursuant to that section.  Accordingly, it was improper for the Board to include a five-year durational limit on a special permit granted pursuant to that provision.

10187-5810-100208151901-6962-displayOn July 21, 2016, the Appellate Division, Third Department, upheld a decision of the trial court in  Lavender II v. Board of Zoning Appeals of the Town of Bolton, 141 A.D. 3d 970 (3d Dept., 2016) (Krogmann, J. ,Warren County) holding that a Castle located in a residential zone along panoramic Lake George, could not be used for commercial purposes such as weddings, large parties, and other social receptions.  Id.

In early 2010, petitioner, John A. Lavender, II, began advertising Highlands Castle on the internet describing the property as “a perfect setting for a special gathering with family and friends . . . or any other meaningful experience you can envision.” Id.  The Castle is located in a residential zone. 

In 2012, the local Zoning Administrator determined that the rental activities did not violate the Town Code.  An appeal was taken by the neighbors, which resulted in a determination by the Zoning Board of Appeals of the Town of Bolton, 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. ”  Id.

Petitioner filed an Article 78 proceeding.  In 2013, the trial court affirmed the Zoning Board’s decision concluding that the activities conducted at Highlands Castle violated the single-family dwellings and associated permitted uses as defined by  Bolton Town Code Section 200.8.  Despite the trial court decision, petitioner continued to use Highlands Castle for weddings, events, and even an American Bar Association event.  A restraining order was issued in 2013, and a final decision dismissing petitioner’s claims was rendered by the trial court in 2015.

Petitioner filed an appeal.  In upholding the trial court decision, the Third Department stated that there “is no dispute that the physical structure situated on petitioner’s property falls squarely within the definition of a single family dwelling.”  The Court further stated that the relevant inquiry “distils 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.”  Id.

The Court noted that petitioner’s contention that “Highlands Castle is held out merely for residential use” is entirely belied by the record.   Highlands Castle was offered for rent, with an emphasis on weddings, large parties, and other receptions.  Petitioner marketed the property on the internet and even offered a comprehensive package, including photographers, food, and vendors to meet every need.

Of critical importance to the Court was the fact that not only was Highlands Castle never rented out for even one single family use, but also, there was no evidence offered to support a finding that use of Highlands Castle for commercial purposes fits within the definition of permitted accessory uses as set forth in Bolton Town Code Section 200.8.  In light of the record and the lack of evidence proffered by petitioner, the Third Department stated that the decision by the Zoning Board of Appeals of the Town of Bolton was neither irrational nor unreasonable.

Of interesting note:  the Highlands Castle website continues to offer the property for weddings, parties, and receptions to be held at Highlands Castle, the Castle Cottage, and the Royal Bedroom.  Same can also be found on Airbnb- refer to our earlier post by Anthony S. Guardino discussing Airbnb land use pitfalls.

 

 

With an increase in the number of vineyards marketing themselves as venues for wedding receptions and special events, local governments across New York State have begun enacting legislation aimed at curtailing the marketing activities of vineyards, indicating that they are seeking to protect the health and safety of their communities. Vineyard Wedding PicSome towns and villages now require vineyards to obtain special permits or even submit site plans, a process that can often be drawn-out and arduous, before permitting vineyards to host certain events. But can municipalities regulate the marketing activities of vineyards located in a local agricultural district? The answer is: it depends.

NYS Agriculture and Markets Law

The New York State Department of Agriculture and Markets recognizes the importance marketing plays in the success and economic viability of a vineyard. In fact, §301(11) of the Agriculture and Markets Law (“AML”) expressly acknowledges that “marketing activities” are part of the “farm operation” of a vineyard when the wine served at these events is composed predominantly of on-farm grapes and fruit. The Department has also determined that on-farm wedding receptions, charitable events and other similar undertakings constitute “marketing activities” and are thus protected and cannot be unreasonably restricted by local municipalities if the vineyard is located in a local agricultural district.

Events hosted by vineyards must be:

  • directly related to the sale of the wine produced on-site
  • be composed from at least 51% of the grapes harvested thereon
  • be incidental to the retail sale of the wine sold
  • hosted by the vineyard or a customer of the vineyard, not an unrelated third-party.

If these conditions are not met, the vineyard cannot avail itself of the protections afforded by the AML and will be subject to local zoning laws.

Municipality Rights & Limits

The Department will also allow local municipalities to require a vineyard to obtain a special use permit or subject itself to site plan review so long as the process is streamlined and not unreasonably burdensome or cost prohibitive. Local municipalities can also require certain information from the vineyard about the proposed event. For example a town or village may be interested in the date and time of a proposed event, the number of people expected to attend, security information, etc.

Should a vineyard find the process to obtain approval from the local government to be unreasonable or arbitrary and capricious, the Department may review the matter pursuant to its powers under §305-a of the AML.

Take-away for Vineyard Owners & Operators

It is important for owners and operators of vineyards to understand that not all marketing activities will be protected by the AML. Even more important is the requirement that vineyards maintain sufficient records which conclusively demonstrate that the marketing events hosted are incidental to the annual sales of the vineyard’s wine. Moreover, the local government may require the vineyard to submit an annual report that confirms the incidental nature of the marketing events.

The AML protects vineyards located within a local agricultural district from unreasonable regulations promulgated by municipalities and can be a good friend when a vineyard’s rights are being infringed upon.