| Matter of Cunney v Board of Trustees of the Vil. of Grand View,N.Y. |
| 2010 NY Slip Op 03326 [72 AD3d 960] |
| April 20, 2010 |
| Appellate Division, Second Department |
| In the Matter of Brendan Cunney, Respondent, v Board ofTrustees of the Village of Grand View, New York, et al., Appellants. |
—[*1] Feerick Lynch MacCartney PLLC, South Nyack, N.Y. (Mary E. Marzolla of counsel), forrespondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Boardof Appeals of the Village of Grand View dated April 7, 2008, which, after a hearing,conditionally granted the petitioner's application for an area variance, the appeal is from so muchof a judgment of the Supreme Court, Rockland County (Berliner, J.), dated March 31, 2009, asgranted that branch of the petition which was to annul the determination on the ground that theOpen Meetings Law (Public Officers Law § 100 et seq.) had been violated,annulled the determination, and remitted the matter to the Zoning Board of Appeals of theVillage of Grand View for a formal decision in open session on the petitioner's application for anarea variance.
Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, thatbranch of the petition which was to annul the determination on the ground that the OpenMeetings Law was violated is denied, the determination is confirmed, and the proceeding isdismissed on the merits.
The petitioner owns certain real property in the Village of Grand View. He was aware ofheight restrictions applicable to his property pursuant to the relevant zoning law. The petitionerreceived site plan approval for new construction, and he built his home in accordance with theapproved plan. Due to an error in the topographical data used by the petitioner's architect,however, the completed home exceeded the zoning law's height restriction by approximatelythree feet. The petitioner was denied a certificate of occupancy by the Village's buildinginspector and thereafter applied to the Village's Zoning Board of Appeals (hereinafter the ZBA)for an area variance. After a public hearing, the ZBA granted the petitioner's application for anarea variance, but only subject to certain conditions. Specifically, the petitioner's poolhouse—an accessory structure—was to be removed and an unobstructed view wasto remain on the northerly side of the property. The petitioner then commenced this proceedingpursuant to CPLR article 78 to review the ZBA's determination, alleging, inter alia, that theconditions imposed upon the granting of the area variance were unreasonable and inconsistentwith the spirit and intent of the zoning law, and that the ZBA had violated the Open MeetingsLaw in making its determination. The Supreme Court found nothing impermissible about theconditions imposed, but granted that branch of the petition which was to annul the determinationon the ground that the Open Meetings Law had been violated. The [*2]Supreme Court thus annulled the determination and remitted thematter to the ZBA for a formal decision in open session on the petitioner's application for an areavariance. The ZBA, the Village Board of Trustees, and the building inspector appeal.
Initially, we agree with the petitioner's assertion that the ZBA violated the Open MeetingsLaw by failing to vote on the application in public session (see Public Officers Law§ 103 [a]; Matter of Oshry v Zoning Bd. of Appeals of Inc. Vil. of Lawrence, 276AD2d 491, 492 [2000]; Matter of Cipriano v Board of Zoning Appeals of City of GlenCove, 203 AD2d 362 [1994]). Nonetheless, under the circumstances of this case, theSupreme Court improperly annulled the ZBA's determination on this basis (see Matter ofCipriano v Board of Zoning Appeals of City of Glen Cove, 203 AD2d 362 [1994]).Although the Legislature has granted the courts the discretionary power, upon good causeshown, to declare void any action taken by a public body in violation of the Open Meetings Law(see Public Officers Law § 107 [1]), the petitioner failed to establish such goodcause here (see Matter of New York Univ. v Whalen, 46 NY2d 734, 735 [1978]; Matter of Wilson v Board of Educ.Harborfields Cent. School Dist., 65 AD3d 1158 [2009], lv denied 13 NY3d 714[2009]; Matter of Roberts v Town Bd. of Carmel, 207 AD2d 404 [1994]). Furthermore,the record does not suggest that the ZBA's failure to comply with the precise requirements of theOpen Meetings Law was anything more than mere negligence (see Matter of Roberts v TownBd. of Carmel, 207 AD2d at 405). Accordingly, the Supreme Court erred in granting thatbranch of the petition which was to annul the determination on the ground that the OpenMeetings Law had been violated. Mastro, J.P., Eng, Belen and Austin, JJ., concur.