March 14, 2012 —
The Town of Liberty Planning Board has granted a Special Use Permit to Camp Agudah on Upper Ferndale Road, to allow the camp to build a 100 by 200 foot building to house two indoor basketball courts.
Agudah, which has received more than 20 building permits over the past decade, is a nonconforming use in a residential neighborhood. The application for the permit initially called the project an “accessory use for a nonconforming use,” meaning that the indoor basketball courts are a use which typically goes with a summer camp.
At the public hearing on February 7, however, this reporter, who has been a vocal critic of the ongoing expansion of the camp over the past decade, cited a decision issued by an appellate court that said a use can’t be considered an accessory use unless it is “truly incidental” to the main use, meaning that indoor basketball courts almost always go with summer camps, or that summer camps cannot be operated without them. This reporter also pointed out that an “accessory use to a nonconforming use” is not among the uses listed as permissible in the “hierarchy of intent.”
A bit later in the meeting, the planning board attorney, Walter Garigliano, said the building was not, in fact, an accessory use but rather “part of the camp itself.”
Those opposed to the project maintain it is not reasonable to consider it part of the camp itself, because the camp has existed for decades without indoor basketball courts.
Therefore, the project should be considered to be simply indoor basketball courts, which is a prohibited use in a residential neighborhood in the Town of Liberty.
Ultimately, the planning board unanimously decided that the building was part of the camp.
This reporter also sited a Court of Appeals case that said the “highest public policy of zoning in New York State is the reasonable restriction and eventual elimination of nonconforming uses.”
The camp’s attorney, Gary Silver, said the decision was “theory” and does not apply to the Town of Liberty, which has a “liberal” zoning code regarding nonconforming uses. Many towns in the state, including the neighboring Town of Thompson, have zoning codes that prohibit nonconforming uses from expanding or constructing new buildings.