| Matter of Edson v Southold Town Zoning Bd. ofAppeals |
| 2013 NY Slip Op 00085 [102 AD3d 687] |
| January 9, 2013 |
| Appellate Division, Second Department |
| In the Matter of Lewis Edson,Appellant, v Southold Town Zoning Board of Appeals,Respondent. |
—[*1] Smith, Finkelstein, Lundberg, Isler and Yakaboski, LLP, Riverhead, N.Y. (Frank A.Isler of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review so much of a determination ofthe Zoning Board of Appeals of the Town of Southold dated August 19, 2010, asconditioned approval of the petitioner's application for a farm stand permit upon certainstorage and seasonal operation limitations, the petitioner appeals from a judgment of theSupreme Court, Suffolk County (Asher, J.), dated June 30, 2011, which denied thepetition and dismissed the proceeding.
Ordered that the judgment is reversed, on the law, without costs or disbursements,the petition is reinstated and granted, and the conditions in the determination prohibitingthe storage of incidental accessory items that are not produced on the petitioner's farmwithin the 4,826 square-foot area of the subject partitioned building and limiting theoperation of the farm stand to the period from Labor Day through March 31 are annulled.
The petitioner, the owner of a Christmas tree farm located in the Town of Southold,applied, pursuant to Southold Town Code (hereinafter the Town Code) § 72-4et seq., to the Town's Building Department for a permit to construct and operate afarm stand in a portion of a building on his farm. After the Building Department deniedthe application, the petitioner appealed to the Zoning Board of Appeals of the Town ofSouthold (hereinafter the board), contending that by partitioning his 7,826 square-footbuilding, he could create a space for his proposed farm stand that did not exceed the arealimitation of 3,000 square feet for farm stands as set forth in the Town Code (seeSouthold Town Code §§ 72-6 [A] [2]; 72-8). Moreover, he established thathis property met the other Town Code requirements for the issuance of the permit, andthat the percentage of the items offered for sale at the farm stand that would be grown bythe petitioner would conform to the requirements of Town Code § 72-7. Followinga public hearing, the board determined that the petitioner's proposal satisfied therequirements for the issuance of a farm stand permit, but attached conditions, inter alia,prohibiting incidental accessory items that are not produced on the farm from beingstored within the remaining 4,826 square-foot area of the subject partitioned building,and limiting the operation of the farm stand to the period from Labor Day through March31. The petitioner commenced this proceeding pursuant to CPLR article 78 to annul somuch of the determination as imposed the aforementioned conditions. The SupremeCourt denied the petition and dismissed the proceeding.[*2]
Contrary to the determination of the SupremeCourt, the petitioner is not judicially estopped from challenging so much of thedetermination as imposed the conditions at issue. " 'The doctrine of judicial estoppelprecludes a party from taking a position in one legal proceeding which is contrary to thatwhich he or she took in a prior proceeding, simply because his or her interests havechanged' " (Private CapitalGroup, LLC v Hosseinipour, 86 AD3d 554, 556 [2011], quoting Matter of New Cr. Bluebelt, Phase4, 79 AD3d 888, 890 [2010]; see Wenger v DMR Realty Mgt., Inc., 90 AD3d 647, 648[2011]; Festinger v Edrich,32 AD3d 412, 413 [2006]). Here, the petitioner's statements before the board insupport of his application were neither sufficiently definite nor so clearly inconsistentwith his current position in this proceeding so as to warrant the application of thedoctrine of judicial estoppel against him (see e.g. Private Capital Group, LLC vHosseinipour, 86 AD3d at 556; Tobias v Liberty Mut. Fire Ins. Co., 78 AD3d 928, 929[2010]).
Turning to the merits, the board could have acted within its authority to rationallyinterpret the Town Code so as to require that all farm stand inventory be stored withinthe 3,000 square-foot area limitation of the proposed farm stand (see generally Matter of Ferraris vZoning Bd. of Appeals of Vil. of Southampton, 7 AD3d 710, 711 [2004]).However, it did not have the authority to attach a condition to its approval of thepetitioner's farm stand application that arbitrarily distinguishes between the types ofinventory to be offered for sale, by permitting the storage of farm stand inventoryproduced on the petitioner's farm in the partitioned area adjacent to the proposed farmstand, while prohibiting the similar storage of incidental accessory items that are notproduced on the petitioner's farm. Likewise, there is no authority in the Town Law or theTown Code, or any evidentiary basis, for the imposition of the condition limiting theoperation of the proposed farm stand to a particular season or to specific dates.Accordingly, the judgment must be reversed, the petition reinstated and granted, and somuch of the determination as imposed the challenged conditions annulled. Mastro, J.P.,Angiolillo, Sgroi and Miller, JJ., concur.