Local zoning ordinances throughout New York State incorporate the flexible “accessory use” component so as not to unnecessarily restrict one’s use of property. Accessory uses are incidental and customary to the principal use of property. Determining whether a use is actually “accessory,” however, is often debated – especially where the use is not specifically enumerated as such or where the ordinance does not define the use.
Recently, in Brophy v. Town of Olive Zoning Board of Appeals, 2018 N.Y. Slip Op. 07388 (3d Dept), the accessory use debate engaged the Appellate Division, Third Department. Ashokan Dreams, a bed-and-breakfast on 28-acres in the Town of Olive (“Town“), began operating in 1998. Ashokan Dreams was zoned “residential-rural-3A,” which permitted, among other uses, “tourist homes,” “boardinghouses” and “commercial recreation.”
The proprietors of the bed-and-breakfast first sought and obtained site plan approval, without conditions, from the Town Planning Board (“Planning Board“) for a single guest bedroom bread-and-breakfast operation in 1998. Almost two-decades later, and without further approvals, Ashokan Dreams had expanded to three guest rooms and offered weddings – upwards of 12 each year – with limited lodging. In 2015, the Town Zoning Enforcement Officer (“ZEO“) advised Ashokan Dreams in writing that site plan review was required because the weddings had grown to affect the health, safety and welfare of the neighbors and that site plan review would be a proper remedy via the imposition of certain limitations.
Ashokan Dreams submitted a site plan application to the Planning Board, which referred the matter to the ZEO and the Town Zoning Board (“ZBA“). After a public hearing, the ZBA determined that the weddings were a “permitted special use to a bed-and-breakfast” requiring site plan review and remitted the matter back to the Planning Board. Notably, the ZBA also reasoned that periodic seasonal events, including weddings, could be an “accessory use” at the site. Neighboring property owners and a neighborhood association (collectively “Neighbors“) commenced an Article 78 proceeding seeking to annul the ZBA’s determination. The Supreme Court, Ulster County, partially granted and partially dismissed the Neighbor’s petition, holding: the ZBA correctly determined weddings were an accessory use, but erred by legislating a “new use subject to a special permit requirement.” The Neighbors appealed challenging, inter alia, the accessory use finding and the Appellate Division affirmed.
The Third Department noted that, generally, a zoning board’s interpretation of local zoning ordinance is afforded deference and will only be disturbed if it is unreasonable or irrational. This deferential standard was applicable “because [determining] whether a proposed accessory use is incidental and customarily found in connection with the principal use of property is, to a great extent, fact-based. Resolution of the accessory use question depends upon 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.”
In its analysis of whether the wedding venue accessory use was customary and incidental to the bed-and-breakfast, the Court considered the character of the use and the area in question. The district permitted “tourist homes,” “boardinghouses” and “commercial recreation.” Tourist homes are dwellings which offer up to four rooms for transient guests. Boardinghouses are dwellings occupied by one family and three or more lodgers. Each of these uses permit the provision of services of a temporary residence. Commercial recreation is defined as making use of mountain land, including resort hotels, seasonal commercial camps resort ranches, resort lodges and bungalow colonies. Notably, another bed-and-breakfast in the same district offered similar weddings services. The Court found held that the ZBA’s determination was not irrational or unreasonable and its reliance, in part, on the fact that another bed-and-breakfast within the same district also offered wedding services was not in error.
 The Town ordinance defined “accessory use” as one that is customarily incidental and subordinate to the principal use of the premises. And, for all residential districts, the Town ordinance authorized any other accessory buildings or use considered by the ZBA to be customarily incidental to any related principal use therein.