State supreme court judge upholds ZBA decision regarding college fence construction

— 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 editor@cazenoviarepublican.com.

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