A New York State Supreme Court judge has sided with the village of Cazenovia and refused to overturn the village zoning board’s April decision to require full site plan review for a proposed perimeter fence around Cazenovia College’s athletic complex rather than issuing a simple building permit.
While the decision, issued by Judge Donald F. Cerio, Jr., on Oct. 22, supported the village’s arguments in the case that the college must go through a complete planning board process, he also sided with the college by declaring that the fence is a stand-alone project and not a part of the previous turf field construction, and therefore the case is not a question of illegal “segmentation,” as was charged by the village zoning enforcement officer.
The fence issue, which has been ongoing since summer 2012, concerns whether or not the village’s Zoning Enforcement Officer, Bill Carr, properly denied in July 2012 the college’s permit application to build the fence.
Carr determined that the fence was not an independent project but rather a part of the college’s 2011-12 $1 million turf field project, and therefore required further site plan review. In November 2012, when pressed for a written decision by the college, Carr said the college acted in bad faith — if not illegally — in separating the fence from the turf field project, an action he declared to be “segmentation,” or submitting separate parts of the same project for zoning approval individually instead of as a whole as a way to prevent a possible negative outcome of a site plan review.
The college rejected that ruling, declaring the fence was an independent project unconnected to the turf field necessitated to protect its investment in the turf field from the continual trespass of its neighbors and other village residents. The college also said that since the village had allowed the college to erect multiple other fences on its property in the past it must allow this fence as well.
The college appealed Carr’s decision to the ZBA on Feb.1, 2013. The ZBA upheld Carr’s decision and ruled that the college must undertake the full site plan review and approval process through the village planning board.
The college then appealed the ZBA’s decision to the state supreme court, where attorneys for both the college and the village made arguments before Cerio on Aug. 23 in Wampsville.
In his decision, a copy of which was obtained by the Cazenovia Republican, Cerio stated that village zoning law clearly states that the zoning enforcement officer may issue a building permit for a fence, but is not mandated to do, and that the ZBA is empowered to reverse or affirm the ZEO’s decisions and a court can only issue its own judgment in such a case if the ZBA’s decision was “arbitrary and capricious,” which he declared it was not. He stated that a fence is a “structure” under village code, and therefore is required to have a full site plan submitted as part of the application process.
“The expressed language of the zoning law makes clear that the [college] need submit to the village a site plan and building permit application for its review and consideration to comply with the zoning law,” Cerio wrote. “This is especially true where the C-2 District in which the college is situated [which allows post-secondary educational uses] is also considered an Historic Preservation Overlay District.”
Cerio also declared that he “did not find there to be a factual basis” for the ZEO’s previous determination that the fence was a component of the college’s previous turf field. Rather, he wrote, the documentary evidence supports a finding that the fence is a stand-along project because the college had declared at the beginning of the turf field project that a perimeter fence was never intended to be included, and was only deemed necessary after the field was completed as a way to protect the college’s investment.
Jason Emerson is editor of the Cazenovia Republican. He can be reached at [email protected].
