| Matter of Zupa v Zoning Bd. of Appeals of Town of Southold |
| 2009 NY Slip Op 05975 [64 AD3d 723] |
| July 21, 2009 |
| Appellate Division, Second Department |
| In the Matter of Mary S. Zupa, Respondent, v ZoningBoard of Appeals of Town of Southold et al., Appellants. |
—[*1] Esseks, Hefter & Angel, LLP, Riverhead, N.Y. (Stephen R. Angel and Anthony C. Pasca ofcounsel), for appellant Paradise Point Association, Inc. Wickham, Bressler, Gordon & Geasa, P.C., Mattituck, N.Y. (Eric J. Bressler of counsel), forrespondent.
In a proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus, in effect,to compel the Zoning Board of Appeals of the Town of Southold to hear and determine thepetitioner's appeal from a determination of the Building Inspector of the Town of Southold datedDecember 21, 2007, denying her application for a building permit, the Zoning Board of Appealsof the Town of Southold appeals, and Paradise Point Association, Inc., separately appeals, aslimited by their respective briefs, from so much of an order and judgment (one paper) of theSupreme Court, Suffolk County (Weber, J.), dated January 22, 2008, as denied those branches oftheir respective motions which were to dismiss the proceeding as time-barred, and granted thatbranch of the petition which was to compel the Zoning Board of Appeals of the Town ofSouthold to hear and determine the petitioner's appeal.
Ordered that the order and judgment is reversed insofar as appealed from, on the law, withone bill of costs, those branches of the appellants' respective motions which were to dismiss theproceeding as time-barred are granted, and the proceeding is dismissed.
The petitioner owns a parcel of land located within the Town of Southold (hereinafter theTown). The parcel abuts a basin with a marina. Paradise Point Association, Inc. (hereinafterParadise Point), a homeowner's association, maintains the marina and its docks.
In a determination dated August 2, 2004, the Town's Zoning Board of Appeals (hereinafterthe ZBA) conditionally granted a building permit application filed by the petitioner, who soughtto construct a house on her parcel. The ZBA found that the marina was a nonconforming use[*2]on the parcel, and conditioned the granting of the petitioner'sapplication upon the removal of that use, or upon the petitioner obtaining a variance permittingthat use in conjunction with her residential use.
In September 2006, in connection with its issuance of a wetlands permit enabling ParadisePoint to perform certain work on the subject docks, the Town's Board of Trustees asked the ZBAto interpret a particular provision of the Town's Zoning Code. In a determination datedSeptember 14, 2006, the ZBA stated in its findings of fact that "[W]ith respect to the issue beforethe [ZBA], the non-conforming 'use' at issue is the non-commercial boat basin on Town ownedland controlled by the Trustees."
Subsequently, the petitioner resubmitted her application to the Town's Building Inspector,arguing that the alternate conditions the ZBA imposed on the approval of her application hadbeen "mooted by material changes." She argued that the ZBA, in its September 14, 2006,determination, had found that the marina use was not on her parcel, but rather, was on theTown-owned basin.
On December 21, 2007 the Building Inspector returned the application to the petitioner,explaining that it had been "[p]reviously denied by the [ZBA]." The petitioner then appealed thatdetermination to the ZBA.
On March 29, 2007 a hearing was held before the ZBA. The hearing was adjourned pendingthe submission by the petitioner of a new application containing a request for the variance"described" in the ZBA's determination dated August 2, 2004. Then, in a letter to the petitioner'sattorney dated April 9, 2007, the ZBA "confirm[ed]" that the hearing had been adjourned for thatpurpose.
The petitioner did not submit a new application, and demanded, in a letter to the ZBA datedAugust 23, 2007, that the ZBA hear and determine her appeal from the denial of her applicationas it was originally presented. In a letter to the petitioner dated September 10, 2007, the ZBAadvised the petitioner, inter alia, that she had to file a new application containing a request forthe variance "required in" the ZBA's determination dated August 2, 2004.
On October 9, 2007 the petitioner commenced the instant proceeding pursuant to CPLRarticle 78, seeking, inter alia, to compel the ZBA to hear and determine her appeal. The ZBA andParadise Point separately moved to dismiss the proceeding on the ground, inter alia, that it wasuntimely. The Supreme Court denied those branches of the motions and granted that branch ofthe petition which was to compel the ZBA to hear and determine her appeal. We reverse.
Initially, the ZBA and Paradise Point, relying on Town Law § 267-c (1), contend thatthe proceeding is untimely because it was not commenced within 30 days after the petitionerreceived the ZBA's letter dated April 9, 2007. However, the 30-day limitations period in TownLaw § 267-c (1) is inapplicable, because the letter did not constitute a final determinationand was not filed with the Town's Clerk, and there is no indication that the ZBA's members'votes on the determination recounted in the letter were ever published (see Matter of Sullivanv Dunn, 298 AD2d 974, 975 [2002]; Matter of Ficalora v Planning Bd. of Town of E.Hampton, 262 AD2d 320 [1999]; Matter of Save the Pine Bush v Zoning Bd. of Appealsof Town of Guilderland, 220 AD2d 90, 94-95 [1996]). Rather, because this proceeding ispremised upon the refusal of a zoning board of appeals to hear and determine an appealconcerning a building permit application, CPLR 217 (1)'s four-month limitations period isapplicable (cf. Engert v Phillips, 150 AD2d 752, 753 [1989]).
A proceeding in the nature of mandamus to compel must be commenced within four monthsafter the refusal by the body or officer, upon the demand of the aggrieved party, to perform aduty enjoined upon the body or officer by law (see CPLR 217 [1]; Matter ofDensmore v Altmar-Parish-Williamstown Cent. School Dist., 265 AD2d 838, 839 [1999];Community Bd. No. 3 v State of N.Y., Off. of Mental Retardation & Dev. Disabilities,76 AD2d 851, 852 [1980]). However, the aggrieved party may not unreasonably delay inmaking the demand, and unexcused delay may constitute laches (see Matter of Sheerin vNew York Fire Dept. Arts. 1 & 1B Pension Funds, 46 NY2d 488, 495-496 [1979];Austin v Board of Higher Educ. of City of N.Y., 5 NY2d 430, 442 [1959]). "[T]hedemand must be made within a reasonable time after the right to make the demand occurs"(Matter of Devens v Gokey, 12 AD2d 135, 136 [1961], affd 10 NY2d 898[1961]). The reasonable time requirement for a prompt demand should be measured by CPLR217 (1)'s four-month limitations period, and thus, a demand should be made no more than fourmonths after the right to make the demand arises (see Matter of Densmore vAltmar-Parish-Williamstown Cent. School Dist., 265 AD2d at 839; Matter of Barbolini vConnelie, 68 AD2d 949, 950 [1979]; Matter of Devens v Gokey, 12 AD2d at 137).
Here, the petitioner's right to make a demand upon the ZBA to hear and determine her appealfrom the denial of her application as it was originally presented arose when she received theZBA's letter dated April 9, 2007, evincing the ZBA's refusal to hear and determine her appealfrom the denial of her application as it was originally presented, and its position that she wasrequired to submit a new application containing a request for the variance described in the ZBA'sAugust 2, 2004 determination. Yet the petitioner first made a demand upon the ZBA to hear anddetermine her appeal from the denial of her application as it was originally presented more thanfour months later, in her letter dated August 23, 2007. Under the circumstances, we find that thepetitioner unreasonably delayed in making her demand, and conclude that this proceeding isbarred by laches (see Matter of Densmore v Altmar-Parish-Williamstown Cent. School Dist.,265 AD2d at 839). Accordingly, the Supreme Court should have granted those branches ofthe ZBA's and Paradise Points' respective motions which were to dismiss the proceeding asuntimely.
In light of our determination, we need not reach the parties' remaining contentions. Fisher,J.P., Dillon, Covello and Dickerson, JJ., concur.