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Judge Orders Illegal Superstructure in Finger Lakes Taken Down
A long-standing steel frame on Conesus Lake which was constructed without necessary approvals from the Conesus Planning Board and Zoning Board of Appeals will need to be demolished by June 2021 following a December 2020 Decision and Order issued by Hon. John J. Ark in Monroe County Supreme Court.
After receiving approval to renovate a pre-existing restaurant in a residential zoning district in the Town of Conesus, a developer unilaterally decided to demolish the pre-existing building and design a much larger building from the ground up, without resubmitting its project to the local Planning Board or Zoning Board of Appeals. The code enforcement officer issued a building permit for that new building without requiring board review.
Upon seeing that the structure was not what was approved by the local boards, neighbors requested that the Town enforce its code to stop construction of the unapproved building. After the Town refused to do so, the neighbors filed an Article 78 Proceeding and Taxpayer Enforcement Action. The Court issued a Temporary Restraining Order halting construction of the building, and after determining that the building did not match the approved plans, remanded the matter to the local boards.
The Planning Board voted to ratify the new building as “field modifications” to the approved renovation plans without requiring the developer to submit a new site plan application for its development and without referring the new project to the Livingston County Planning Board under General Municipal Law § 239-m. Additionally, after the developer secured approval of its initial renovation project, the Town amended its zoning ordinance to remove the restaurant as a permitted use in the zoning district. However, the Planning Board allowed the developer to proceed under the old zoning code rather than the current version which prohibited the new project. The Zoning Board of Appeals voted to deny the developer’s application.
The Court subsequently invalidated the building permit for being issued without the requisite board review, then annulled the approval of the Planning Board for failing to require full site plan review, failure to refer the project to the County Planning Board, and failure to require the developer to comply with the current version of the zoning code. The Court also determined that the developer was liable for damages and penalties to the neighbors for violation of the zoning code.