| Matter of Granger Group v Zoning Bd. of Appeals of Town ofTaghkanic |
| 2009 NY Slip Op 03802 [62 AD3d 1102] |
| May 14, 2009 |
| Appellate Division, Third Department |
| In the Matter of Granger Group et al., Appellants, v Zoning Boardof Appeals of the Town of Taghkanic et al., Respondents. |
—[*1] Lawrence Howard, Troy (Joshua A. Sabo, Albany, of counsel), for Zoning Board of Appealsof the Town of Taghkanic and another, respondents. Rapport, Meyers, Whitbeck, Shaw & Rodenhausen, L.L.P., Hudson (Victor M. Meyers ofcounsel), for Alan Wilzig, respondent.
Kavanagh, J. Appeal from a judgment of the Supreme Court (Hummel, J.), entered May 5,2008 in Columbia County, which, in a combined proceeding pursuant to CPLR article 78 andaction for declaratory judgment, granted respondent Alan Wilzig's motion to dismiss thepetition/complaint.
Respondent Alan Wilzig owns property that is improved with a single-family residence andis located in the Town of Taghkanic, Columbia County. On August 23, 2006, Wilzig applied fora building permit authorizing the construction of a 12,000 square-foot storage facility on hisproperty to be used to house, among other things, more than 100 of his personally owned vintagemotorcycles. Respondent Dennis Callahan, the Town's Code Enforcement Officer, approvedWilzig's application but, upon issuing the building permit dated August 23, 2006, indicated onthe face of the document that it was for "foundation only." Upon receipt of this permit, Wilzigimmediately began construction of the foundation of the building.
Petitioners, nearby landowners and the Granger Group, an "association formed for the [*2]purpose of insuring fair and reasonable enforcement of Land UseRegulations in the Town of Taghakanic," repeatedly raised concerns with town officialsregarding the nature of Wilzig's improvements to his property.[FN1]Petitioners claim that, despite making appropriate requests under the Freedom of InformationLaw, they were not provided with a copy of the building permit until November 1, 2006, sometwo months after it had been issued. Petitioners also claim that, throughout this period, they hadbeen repeatedly assured by Callahan that the permit given to Wilzig authorized only theconstruction of the building's foundation and that another permit was required for theconstruction of the building. Petitioners further contend that Callahan told them that such apermit would only be issued when final plans detailing the design and configuration of thestructure had been submitted by Wilzig and approved by town authorities. Callahan deniesmaking such a representation and, in May 2007, upon review of supplemental plans that Wilzigsubmitted for the project, authorized him to complete construction of the building under theoriginal permit that had been issued for the project.
When petitioners learned that Callahan had authorized Wilzig to complete construction ofthe building, they filed an appeal with respondent Zoning Board of Appeals (hereinafter ZBA)challenging Callahan's actions in issuing the building permit. The ZBA dismissed the appeal,concluding that it was untimely because it had not been taken by petitioners within 30 days ofthe permit being issued on August 23, 2006.[FN2]Petitioners thereafter brought this combined CPLR article 78 proceeding and declaratoryjudgment action. Wilzig moved to dismiss the petition/complaint and Supreme Court found that,while petitioners' appeal to the ZBA was timely, the relief sought in the petition/complaint wasbarred by laches and by petitioners' failure to seek injunctive relief before construction of thestorage building was complete. Petitioners appeal and we now affirm.
Supreme Court based its decision dismissing the petition/complaint on petitioners'unexplained failure to seek an injunction barring any further construction on the building, eventhough they were well aware, after commencing this proceeding/action, that Wilzig not only hadthe Town's permission to complete the project, but that he was under no legal obligation to ceaseconstruction while this proceeding was pending (see Matter of Dreikausen v Zoning Bd. ofAppeals of City of Long Beach, 98 NY2d 165, 173 [2002]; Matter of Salvador v Town of Lake [*3]George Planning Bd., 31 AD3d 906, 907 [2006]; Durham v Village of Potsdam, 16AD3d 937, 938 [2005], lv denied 5 NY3d 702 [2005]; compare Matter of Schupak v Zoning Bd.of Appeals of Town of Marbletown, 31 AD3d 1018, 1019-1020 [2006], lvdenied 8 NY3d 842 [2007]). Moreover, petitioners' contention that Wilzig acted in bad faithor without authority in continuing construction is not supported by the record given that it isundisputed that he possessed a permit authorizing construction of the building and that Callahanpaid periodic visits to the site during this period to insure that the structure, as erected, was infull compliance with the permit and the Town's zoning ordinance (see Matter of Mehta v Town of MontourZoning Bd. of Appeals, 4 AD3d 657, 657-658 [2004]; see also Matter of Riverkeeper, Inc. vJohnson, 52 AD3d 1072, 1074 [2008], lv denied 11 NY3d 716 [2009]).
We also note that, once this proceeding/action was commenced, the parties entered into astipulation that petitioners claim was designed to "preserve the status quo" during its pendency.However, the stipulation, by its terms, expressly provided that it did not serve to "stayconstruction of the storage building if . . . Wilzig determines to move forward withconstruction." As it now appears that construction of this building has been completed atsignificant cost to Wilzig and is being used for its intended purpose, petitioners' failure to seekinjunctive relief rendered the proceeding/action moot (see Matter of Dreikausen v ZoningBd. of Appeals of City of Long Beach, 98 NY2d at 173-174; Matter of Salvador v Townof Lake George Planning Bd., 31 AD3d at 907).
As a result, we need not address the issue raised as to the timeliness of petitioners' appeal tothe ZBA from the issuance of the August 23, 2006 building permit.
Mercure, J.P., Spain, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote 1: Wilzig had previouslycommenced construction without a permit of a one-mile "motorcycle track" and accessorystorage buildings on his property, but ceased construction when so ordered by Callahan. WhenWilzig's application for a permit authorizing the construction of the track and buildings wassubsequently denied by the Town, he initiated a CPLR article 78 proceeding challenging thatdetermination. The petition was ultimately dismissed by Supreme Court (Hummel, J.), whichconcluded that the Town had acted properly in finding that the track and accessory buildingswere nonconforming uses for a residential property and, as such, were not permitted under theTown's zoning ordinance.
Footnote 2: The Town's local zoningordinance provides that an appeal must be taken within 30 days, compared to Town Law §267-a (5) (b), which allows for 60 days for the taking of such an appeal.