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Lawsuit against Spa City over dog kennel dismissed

Lawsuit against Spa City over dog kennel dismissed

Owner of the former Hibachi Japanese Restaurant on S. Broadway sued city ZBA last March
Lawsuit against Spa City over dog kennel dismissed
The closed Hibachi Japanese Restaurant as seen in March 2017
Photographer: Gazette file photo

SARATOGA SPRINGS — A lawsuit over the city zoning board's approval of plans to build a dog kennel next to a Japanese restaurant was dismissed on Thursday.

Attorney Jon Crain filed the lawsuit early last year in state Supreme Court  in Saratoga County on behalf of Wen Mei “Iris” Lu, owner of the former Hibachi Japanese Restaurant at 3310 S. Broadway. The restaurant closed around Labor Day 2016. 

Lu sought a court order annulling an area variance granted by the Zoning Board of Appeals in January 2017 for Matt Sames' plan to build a Pet Lodge on an adjacent parcel. The suit claimed the proposed kennel would hurt Lu’s ability to lease the restaurant and develop nearby residential properties she also owned. 

The case was dismissed in the Appellate Division by Supreme Court Justice Robert C. Mulvey. 

"Addressing the merits of the application, we find that the ZBA's determination to grant the area variances also has a rational basis in the record," Mulvey's dismissal states. "In considering an application for an area variance, a zoning board of appeals is required to weigh the benefit to the applicants against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted, while also considering five statutory factors. 

"Here, the record supports the ZBA's conclusion that the proposed variance would not produce an undesirable change in the character of the neighborhood or a detriment to nearby properties, as the subject property was surrounded by other commercial establishments – including petitioners' restaurant, a consignment shop and a veterinary clinic – and would be only minimally visible from the road."

Sames sought to build a 6,000-square-foot dog kennel on 1.6 acres at the back portion of the property, which is zoned rural residential. While animal kennels are an allowable use of rural residential-zoned land, they are not permitted on land zoned for tourist-related businesses, which is the designation for the front of the property. That prompted the need for the ZBA's area variance.

Crain, Lu's attorney, sent letters to the ZBA in September and December of 2016, requesting they deny the area variance. 

“It is beyond dispute that dogs, especially when crammed with other dogs in constrained spaces, create a significant amount of noise and odor. Such noise and odor … would persist at all hours of the day and night,” Crain's September 2016 letter stated. “Dogs are especially likely to act loudly and/or aggressively when they are crated in unfamiliar environments.

“No one wants to live or eat next to a 24/7 pet lodging facility.”

On Thursday, Crain said he had no comment on the dismissal of the lawsuit. 

Sames could not be reached for comment. 

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