| Matter of Santora v Town of Poughkeepsie Zoning Bd. of Appeals |
| 2008 NY Slip Op 07921 [55 AD3d 741] |
| October 14, 2008 |
| Appellate Division, Second Department |
| In the Matter of Brian Santora et al., Appellants, v Town ofPoughkeepsie Zoning Board of Appeals et al., Respondents. |
—[*1] Van De Water and Van De Water, LLP, Poughkeepsie, N.Y. (David D. Hagstrom of counsel),for respondents Town of Poughkeepsie Zoning Board of Appeals, Town of Poughkeepsie PlanningBoard, and Town of Poughkeepsie Town Board. Teahan & Constantino, Poughkeepsie, N.Y. (Richard I. Cantor of counsel), for respondentOakwood Partners, LLC.
In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review two determinations of theTown of Poughkeepsie Zoning Board of Appeals, both dated June 14, 2006, which, after a hearing,granted the application of Oakwood Partners, LLC, for area variances, and action for a judgmentdeclaring, inter alia, that the re-zoning as adopted in Local Law No. 17 of 2005 of the Town ofPoughkeepsie by resolution of the Town Board of the Town of Poughkeepsie, dated December 14,2005, constituted illegal spot zoning, the petitioners/plaintiffs appeal, as limited by their brief, from somuch of an order and judgment (one paper) of the Supreme Court, Dutchess County (Pagones, J.),dated November 30, 2006, as granted those branches of the respondents/defendants' motion whichwere to dismiss the fifth cause of action as time-barred by the four-month statute of limitationsapplicable to CPLR article 78 proceedings, and the sixth and seventh causes of action for failure tostate a cause of action.
Ordered that the order and judgment is affirmed insofar as appealed from, on the law, with one billof costs to the respondents appearing separately and filing separate briefs.
Initially, we note that this hybrid proceeding and action is not academic despite the apparent [*2]substantial completion of the subject project, and the proceeding andaction is not barred by the doctrine of laches (see Matter of Citineighbors Coalition of Historic Carnegie Hill v New York CityLandmarks Preserv. Commn., 2 NY3d 727, 729 [2004]; Cohen v Krantz, 227AD2d 581 [1996]). The petitioners/plaintiffs did not delay in instituting the proceeding and action, andsought to maintain the status quo by first bringing an action pursuant to Town Law § 282, whichtriggered an automatic stay of all proceedings, and by later moving for a preliminary injunction beforethis Court (see generally Matter of Silvera vTown of Amenia Zoning Bd. of Appeals, 33 AD3d 706 [2006]; Matter of Michalak vZoning Bd. of Appeals of Town of Pomfret, 286 AD2d 906 [2001]; Vitiello v City ofYonkers, 255 AD2d 506 [1998]; Matter of Uciechowski v Ehrlich, 221 AD2d 866,867-868 [1995]; cf. Matter of Dowd vPlanning Bd. of Vil. of Millbrook, 54 AD3d 339 [2008]; Matter of Mehta v Town of Montour Zoning Bd. of Appeals, 4 AD3d657, 657-658 [2004]; Matter of Group for S. Fork v Planning Bd. of Town of Southampton,306 AD2d 281 [2003]).
The fifth cause of action, however, is academic in light of the townwide zoning revision adopted bythe Town of Poughkeepsie on September 26, 2007, effective October 1, 2007. This cause of actionalleged that the rezoning of a 10-acre parcel of land in the Town of Poughkeepsie, by the adoption of a2005 zoning amendment, constituted illegal spot zoning. Since the commencement of this proceedingand action, the town has enacted legislation rezoning the property at issue, and therefore the challengeto the zoning designation created by the zoning amendment is academic (see Matter of Stato vSquicciarini, 59 AD2d 718 [1977]; Matter of Lunden v Petito, 30 AD2d 820 [1968]).
In the sixth cause of action, the petitioners-plaintiffs argued in their amended petition and complaintthat the Zoning Board of Appeals (hereinafter the ZBA) exceeded its jurisdiction by granting variancesfor the subject project. Although a zoning board is without authority to grant a variance that "violatesthe general purpose of the [zoning] ordinance" or "introduce[s] such an incongruity into the ordinancethat the zoning pattern would be seriously disarranged" (Van Deusen v Jackson, 35 AD2d 58,60-61 [1970], affd 28 NY2d 608 [1971]), the Supreme Court correctly concluded that thevariances granted by the ZBA here do not implicate such concerns.
In the seventh cause of action, the petitioners-plaintiffs argued that the ZBA failed to adequatelyaddress the factors set forth in Town Law § 267-b and its determination to grant variances wastherefore arbitrary and capricious, and an abuse of discretion. When reviewing a determination of azoning board of appeals, a court has the authority to review the record (see Matter of Uciechowskiv Ehrlich, 221 AD2d 866 [1995]), and is limited to determining whether the board's action isillegal, arbitrary and capricious, or an abuse of discretion (see Matter of Ifrah v Utschig, 98NY2d 304, 308 [2002]; Matter of Fuhst v Foley, 45 NY2d 441, 444 [1978]; Matter of Kaufman v Mansi, 1 AD3d514, 515 [2003]; Matter of Tarantino v Zoning Bd. of Appeals of Town of Brookhaven,228 AD2d 511, 512 [1996]; Matter of Smith v Board of Appeals of Town of Islip, 202AD2d 674, 675 [1994]).
Here, the allegations of the petitioners-plaintiffs that the ZBA did not take into account all thenecessary factors of Town Law § 267-b are conclusory and unsupported by the record.Accordingly, the Supreme Court properly dismissed the seventh cause of action.
The parties' remaining contentions are without merit. Mastro, J.P., Spolzino, Balkin and Leventhal,JJ., concur.