| Matter of Jones v Zoning Bd. of Appeals of Town of Oneonta |
| 2009 NY Slip Op 03427 [61 AD3d 1299] |
| April 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of Rodney Jones et al., Appellants, v Zoning Board ofAppeals of Town of Oneonta et al., Respondents. |
—[*1] Bonnie Jones, Oneonta, appellant pro se. Harlem & Harlem, Oneonta (Richard A. Harlem of counsel), for Zoning Board of Appeals ofthe Town of Oneonta and another, respondents. Kehoe & Merzig, Oneonta (Davis S. Merzig of counsel), for Larry Place,respondent.
Peters, J.P. Appeal from a judgment of the Supreme Court (Dowd, J.), entered May 9, 2008in Otsego County, which dismissed petitioners' application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent Zoning Board of Appeals of the Town ofOneonta granting respondent Larry Place's request for a use variance.
Respondent Larry Place inherited property adjacent to petitioners in the Town of Oneonta,Otsego County. Both properties are in a RA-40 zone, wherein the permitted uses are largelyresidential and agricultural. Place's property contains a half-century-long inactive andunreclaimed sand and gravel mine. In February 2007, Place applied for a special use permit toallow mining on the property, which was denied. He thereafter applied to respondent ZoningBoard of Appeals of the Town of Oneonta for a use variance. Following a hearing, the Boardgranted the use variance, prompting this proceeding by petitioners seeking its annulment.Concluding that adequate notice of the hearing had been provided and that the Board'sdetermination was supported by substantial evidence, Supreme Court dismissed the petition, and[*2]this appeal by petitioners ensued.
We find merit in petitioners' assertion that the failure to provide proper notice of the hearingto both the general public (see Town Law § 267-a [7]; Code of Town of Oneonta§ 103-85 [C]) and to petitioners personally (see Code of Town of Oneonta §103-85 [C]) requires annulment of the use variance. To satisfy the public notice requirement ofthe Town Law or a corresponding local law, the notice "should not mislead" (Matter ofGernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 678 [1996]; see Matter ofMcGrath v Town Bd. of Town of N. Greenbush, 254 AD2d 614, 617 [1998], lvdenied 93 NY2d 803 [1999]; Reizel, Inc. v Exxon Corp., 42 AD2d 500, 504 [1973],affd 36 NY2d 888 [1975]), must be "clear and unambiguous" and, "[w]here there isdoubt as to the sufficiency of the notice, such doubt will be resolved against the notice"(Matter of Gardiner v Lo Grande, 92 AD2d 611, 612 [1983], affd 60 NY2d 673[1983] [internal quotation marks and citations omitted]; see Coutant v Town ofPoughkeepsie, 69 AD2d 506, 511-512 [1979]). When a hearing on a variance application isscheduled by a zoning board, public notice of the hearing must be furnished (see TownLaw § 267-a [7]; Code of Town of Oneonta § 103-85 [C]). Here, the publishednotice stated that the hearing concerned a use variance for the "Larry Place Mine Permit 1715State Hwy 205 Tax Parcel No: 274.00-2-36.01." While the notice lists the tax parcel numbercorrectly, the address of the property that is the subject of the hearing, 765 State Highway 205, isnot the address given in the notice.[FN1]At the very least, this error rendered the notice ambiguous as to the property that was the subjectof the hearing such that it could have "misl[ed] interested parties into foregoing attendance at thepublic hearing" (Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d at 678).In our view, this defect was fatal (see P& N Tiffany Props., Inc. v Village of Tuckahoe, 33 AD3d 61, 63 [2006], appealdismissed 8 NY3d 943 [2007]; 41 Kew Gardens Rd. Assoc. v Tyburski, 124 AD2d553, 554 [1986], lv denied 68 NY2d 612 [1986]).[FN2]
Turning to the issue of personal notice, petitioners had a right to notice of the hearingoriginating in the Town Code, and the extent of that right "is measured by its terms"(Ottinger v Arenal Realty Co., 257 NY 371, 379 [1931]). Moreover, when a municipalityhas enacted its own notice provisions, those provisions must be followed (see Matter of Kuhnv Town of Johnstown, 248 AD2d 828, 830 [1998]). The Code of the Town of Oneontaprovides that, "[a]t least 10 days before [the Board's] hearing, the applicant shall serve the noticeof such hearing and an explanation of the variance . . . sought to all propertyowners within 200 feet of the subject property either by certified mail, return receipt requested,or by personal delivery evidenced by a receipt signed by such property owner. Such notices shallbe sent to the last known address as shown by the most recent town tax records" (Code of Townof Oneonta § 103-85 [C]). The notice intended for petitioners was mailed to a formeraddress, returned to Place with a notation that the forwarding order had expired and no furtherattempt to provide notice to petitioners was undertaken. The record indicates that petitioners'outdated address was provided by the Town's Code Enforcement Office and that petitioners hadbeen receiving their tax bills at their present [*3]address for morethan three years before the notice of hearing was mailed. Consequently, petitioners were notprovided notice as required under the Town Code (see Matter of Kuhn v Town ofJohnstown, 248 AD2d at 830). Furthermore, while a failure to provide actual notice to onewho would be entitled to notice pursuant to statute, ordinance, rule or regulation may not be fatalif the enumerated procedures are complied with (see Ottinger v Arenal Realty Co., 257NY at 381-382), such was not the case here.
Nor was the failure cured by petitioner Rodney Jones' appearance at and participation in thehearing. Approximately two hours before it was to commence, Rodney Jones discovered that thehearing was due to be held. He appeared at the hearing, raised the issue of notice and voicedobjections to the application before the Board voted to grant the use variance. Petitioner BonnieJones did not become aware of the hearing until after it was concluded. As the Town Coderequired notice "[a]t least 10 days" before the hearing, the two hours' notice to Rodney Jones andwholesale failure of notice to Bonnie Jones deprived petitioners of the opportunity tomeaningfully participate in the hearing and frustrated the purpose and intent of the noticerequirement. Although, under certain circumstances, defective notice may be cured by actualnotice and an appearance at the hearing (see Matter of Baer v Town of Waterford, 186AD2d 850, 851 [1992]; Matter of Ahearn v Zoning Bd. of Appeals of Town ofShawangunk, 158 AD2d 801, 802 [1990], lv denied 76 NY2d 706 [1990]), theprejudice accruing to petitioners here was not obviated by Rodney Jones' appearance andparticipation.[FN3]
Accordingly, in light of the defective public notice and the failure to provide petitioners withpersonal notice of the hearing as required under the Town Code, we find that Supreme Courterred in failing to grant the petition and annul the Board's determination. In light of our decision,we need not reach the remaining issues raised by petitioners.
Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the judgment is reversed, on thelaw, without costs, petition granted and determination annulled.
Footnote 1: The address given in the noticewas apparently that of Place's residence in the Town of Laurens, Otsego County.
Footnote 2: Our conclusion that this noticewas confusing and misleading is reinforced by the Board's decision granting the use variance,wherein it identified the subject property by the erroneous address.
Footnote 3: Our concerns over theinadequacy of notice here are further heightened by the fact that the hearing was sparselyattended; Rodney Jones was the only member of the public to participate. Moreover, it appearsfrom the record before us that even those neighbors who received the personal notice that theTown Code requires were provided with a notice that failed to list a date or time for the hearing.