In what is believed to be unprecedented among zoning boards on Long Island, the Town of Islip Zoning Board recently permitted applicants to proffer testimony in support of their zoning application through the use of live video conferencing. The applicants, who were clients of this firm, had purchased a summer residence in the community of Seaview on Fire Island in 2009, and soon discovered that an existing accessory guesthouse on the property did not have a Certificate of Occupancy. Since the Islip Town Code no longer permits guesthouses on Fire Island, the applicants submitted an application to the Zoning Board seeking to establish their right to continue the guesthouse as a prior non-conforming use. Under the Islip Town Code, the right to continue a prior non-conforming use must be established by proof that the structure was continuously used for the non-conforming use since prior to 1978, which is when the zoning regulations were amended to prohibit guesthouses.
In support of their case, the applicants submitted affidavits from two individuals to demonstrate the requisite continuity of use, but they were rejected by the Board on the basis that the affiants could not be questioned on their sworn statements. One of the affiants, and the applicants’ primary witness, owned the property from the early 1970s to 2007, and constructed the main dwelling and converted the existing accessory structure into a guesthouse by adding a bedroom, bathroom and utility room in 1977. Unfortunately for the applicants, this person was an elderly woman who now resided in Florida and was unable to travel to Islip to personally appear before the Zoning Board.
In an effort to address the Zoning Board’s preference for live testimony and the witness’ inability to personally testify before the Board, attorneys from Farrell Fritz requested that the Zoning Board permit the applicants to introduce “live” testimony through the use of video conferencing. The applicants’ attorneys argued that live two-way video conferencing has been recognized by Federal and State courts as an acceptable means for obtaining testimony in judicial and quasi-judicial proceedings because it achieves all of the purposes of live in-person testimony, including the ability to cross-examine a witness and assess the witnesses mental capacity, veracity, accuracy and credibility. They also cited several cases where the courts permitted testimony by video conferencing in cases where, as in this case, the witness resided in another State and travelling would cause an undue hardship.
After much deliberation, the Islip Zoning Board granted the applicants’ request have their witness to testify from her Florida home by way of a video conference link to Islip Town Hall. On April 3, 2012, the witness provided the Board with live video testimony that the accessory structure at issue was continuously used as a guesthouse for family members and friends each and every summer from 1977 to 2007, when she sold the property. Other witnesses provided live “in-person” testimony attesting to the fact that the accessory structure was similarly used from 2007 to present. At the conclusion of all testimony, the Zoning Board voted unanimously to approve the application and permit the accessory structure to continue to be used as a guesthouse as a prior non-conforming use.