Commercial Zoning

My Kid Could Paint That: Zoning Dispute Between Artist and Surrounding Landowners

Land is land, disputes are disputes, and neighborly sensitivities are neighborly sensitivities. The only thing that seems to change with jurisdictions is the applicable law.

In my home county in New York — Rockland County, a once relatively rural but now-burgeoning bedroom exurb of Manhattan — “art” is intersecting with “land use” and “zoning.” We’ve addressed this topic before within this space here.

The landowner is a fellow named James Garvey, a blacksmith and artist. Mr. Garvey’s metal works grace a midtown Manhattan subway station and Central Park to name the more significant locations. Mr. Garvey lives on 2.5 acres in the historic hamlet of Sparkill, which is located in the Town of Orangetown. In order to better ply his trade, Mr. Garvey filed a building application with the Town for an art studio and multiple sheds, which would be in addition to the two-story residence already located on the property. The Town denied Mr. Garvey’s application for a building permit, citing that the “forging and welding” Mr. Garvey would conduct in the studio are not part of a permitted use or “otherwise in compliance with [the zoning laws applicable to] the neighborhood.” According to one report, the administrative official charged with the denial stated: “I felt that what he was doing was more than what was typical of an artist. He’s doing more of commercial operation. That’s how I viewed it.” So, then, regardless of the building permit, is Mr. Garvey violating the Town’s zoning ordinance? On the other hand, is it proper that an administrative official is determining what constitutes “art” and what constitutes “more than what [is] typical of an artist”?

The lawyer for a group opposing Mr. Garvey’s proposal is gumming up zoning and police power issues, which may be causing the Town some pause. The group takes the layered position that Mr. Garvey is seeking the construction of a “commercial foundry” upon property zoned residential, and, even if that’s not the case, the use to which he will put the buildings “would be an immediate threat to the health, safety and welfare of residents” due to almost certain groundwater contamination.

Mr. Garvey has appealed the denial to the Town’s Board of Zoning Appeals, which heard the matter earlier this month in a quasi-judicial setting. The Appeals Board continued the conclusion of the hearing for a date uncertain.

If Mr. Garvey should fail before the Appeals Board, we’d think a lawsuit, with the inevitable First Amendment claim, would follow. If Mr. Garvey wins, it will be interesting to see if the neighbors can establish standing to sue; counsel has already started those wheels in motion, it seems.

Mike Thelen is a lawyer in Womble Carlyle’s Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

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