| Matter of Kowalczyk v Town of Amsterdam Zoning Bd. ofAppeals |
| 2012 NY Slip Op 03697 [95 AD3d 1475] |
| May 10, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of Stephen Kowalczyk et al., Appellants, vTown of Amsterdam Zoning Board of Appeals, Respondent, et al., Respondents. (ProceedingNo. 1.) In the Matter of Stephen Kowalczyk et al., Appellants, v Town of AmsterdamPlanning Board, Respondent, et al., Respondents. (Proceeding No.2.) |
—[*1] Tabner, Ryan & Keniry, L.L.P., Albany (Dana L. Salazar of counsel), for Town ofAmsterdam Zoning Board of Appeals and another, respondents.
Spain, J. Appeal from a judgment of the Supreme Court (J. Sise, J.), entered June 7, 2011 inMontgomery County, which, in two proceedings pursuant to CPLR article 78, grantedrespondents' motion to dismiss the petitions.
Petitioners and respondents David Kaczkowski and Sylvia Kaczkowski own adjoiningparcels of property in a residentially zoned district in the Town of Amsterdam, MontgomeryCounty. The Kaczkowskis acquired their property in 2004 and operate a junkyard as a preexistingnonconforming use that predates the Town's 1972 enactment of zoning, which did not permitsuch use in a residential zone. In 2007, the Kaczkowskis applied for a use variance to construct agarage on their property in which they planned to dismantle vehicles and sell vehicle parts.Respondent Town of Amsterdam Zoning Board of Appeals (hereinafter ZBA) approved theapplication for a use variance in November 2008, and the Kaczkowskis were issued a buildingpermit.[FN1]Petitioners commenced a proceeding pursuant to CPLR article 78 challenging the ZBA's issuanceof the use variance.
At the Kaczkowskis' request, the ZBA conducted a rehearing at which petitioners spoke inopposition to the application, which the ZBA unanimously[FN2]voted to approve in July 2009 and authorized issuance of a building permit. Petitioners thencommenced a second CPLR article 78 proceeding challenging the ZBA's determination to againgrant the requested use variance.
Supreme Court subsequently denied the ZBA's motion to dismiss those proceedings and,thereafter consolidated these proceedings into what is now proceeding No. 1. The Kaczkowskisreceived site plan approval on September 1, 2010 and were issued a certificate of occupancy bythe Town Code Enforcement Building Inspector on November 1, 2010. In between those events,on October 6, 2010, petitioners commenced another CPLR article 78 proceeding (proceeding No.2) challenging the site plan approval by respondent Town of Amsterdam Planning Board andseeking removal of the garage building and a directive that the Kaczkowskis cease and desist useof their property for junkyard purposes to the extent that it was not previously used for suchpurposes, among other relief.
It is undisputed that, during the pendency of proceeding No. 1, the Kaczkowskis openlyundertook the ongoing construction of the proposed garage structure, and this progress was fullyvisible to petitioners; while the start date and exact progression are not discernible, it is clear thatconstruction was complete by November 1, 2010. Supreme Court subsequently granted a motionby the ZBA—which the Kaczkowskis joined—to dismiss proceeding Nos. 1 and 2as moot, given that the garage had been fully constructed and petitioners had failed to seekinjunctive relief. Petitioners now appeal.
We affirm. "Typically, the doctrine of mootness is invoked where a change in circumstancesprevents a court from rendering a decision that would effectively determine an actualcontroversy" (Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98[*2]NY2d 165, 172 [2002] [citation omitted]). Where, as here,the change in circumstances concerns a construction project which is completed, while relief is"theoretically available" in that a structure or project "can be destroyed," courts have consideredseveral factors to be significant (id. at 172-173) in addition to "how far the work hasprogressed towards completion" (Matterof Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Preserv.Commn., 2 NY3d 727, 729 [2004]). "Chief among them has been a challenger's failureto seek preliminary injunctive relief or otherwise preserve the status quo to prevent constructionfrom commencing or continuing during the pendency of the litigation" (Matter of Dreikausenv Zoning Bd. of Appeals of City of Long Beach, 98 NY2d at 173 [citations omitted]; see Matter of Granger Group v Zoning Bd.of Appeals of Town of Taghkanic, 62 AD3d 1102, 1103-1104 [2009]; Matter of Riverkeeper, Inc. v Johnson,52 AD3d 1072, 1073-1074 [2008], lv denied 11 NY3d 716 [2009]; Matter of Salvador v Town of Lake GeorgePlanning Bd., 31 AD3d 906, 907 [2006]; Durham v Village of Potsdam, 16 AD3d 937, 938 [2005], lvdenied 5 NY3d 702 [2005]; Matter of Fallati v Town of Colonie, 222 AD2d 811[1995]; cf. Matter of Schupak v ZoningBd. of Appeals of Town of Marbletown, 31 AD3d 1018, 1019-1020 [2006], lvdenied and dismissed 8 NY3d 842 [2007]; Matter of Defreestville Area Neighborhood Assn., Inc. v Planning Bd. ofTown of N. Greenbush, 16 AD3d 715, 717-718 [2005]).
We agree with Supreme Court's conclusion that petitioners failed to make sufficient efforts topreserve the status quo and safeguard their rights, pending judicial review, by failing to evenattempt to obtain an injunction or stay to prevent the commencement of the construction of thegarage or the continuation of the open, visible and ongoing construction, although aware of theavailability of that relief. Petitioners' claim that the Kaczkowskis proceeded in bad faith andwithout authority—factors weighing against mootness—were properly found to beoutweighed by factors militating in favor of a mootness finding. The Kaczkowskis acquired abuilding permit in 2008, obtained ZBA-approved use variances in 2008 and 2009 and, while theydid not secure the required site plan approval until late in the process, their multi-year, ongoingconstruction was visible to all and certainly did not involve "a race to completion" (Matter ofDreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d at 172; see Matterof Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Preserv.Commn., 2 NY3d at 729; Matter ofMehta v Town of Montour Zoning Bd. of Appeals, 4 AD3d 657, 658 [2004]).Petitioners never sought to enjoin the ongoing construction on the ground that site plan approvalhad not been obtained, and they have not challenged the building permit.
Given petitioners' failure to identify "novel issues or public interests such as environmentalconcerns" warranting review (Matter of Dreikausen v Zoning Bd. of Appeals of City of LongBeach, 98 NY2d at 173), and Supreme Court's supportable conclusion that the removal ofthe garage "would clearly cause undue hardship to the Kaczkowskis," we agree that the instantproceedings are moot. As we do not discern that the exception to the mootness doctrine isapplicable (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]), SupremeCourt properly granted the motion and dismissed the proceedings as moot (see Matter ofMehta v Town of Montour Zoning Bd. of Appeals, 4 AD3d at 658).
Mercure, J.P., Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote 1: The building permit is not in therecord, but petitioners conceded that it was issued in November or December 2008.
Footnote 2: Although the MontgomeryCounty Planning Board recommended disapproval, that recommendation was subject to overrideby the ZBA (see General Municipal Law § 239-m [5]).