Appellate Division Dismisses Petition To Vacate Use Variance As Time Barred

On July 18, 2012, Respondent Zoning Board of Appeals of the Town of Oyster Bay (“ZBA”) granted an application Respondent Karen Malamud for a use variance to use a single family home as a parent-child residence, subject to the May 14, 2012 plans. Respondent Town of Oyster Bay Department of Planning and Development (“DPD”) issued a building permit for the rear addition to Malamud’s property based upon revised plans dated July 20, 2012. Petitioners, Malamud’s neighbors, filed an administrative appeal challenging the issuance of the permit, and commenced an Article 78 proceeding on June 13, 2013.  The Supreme Court, Nassau County granted the respondents’ separate motions to dismiss the petition as time-barred, denied the petition and dismissed the proceeding. Petitioners appealed.

On appeal, the Appellate Division, Second Department found that contrary to Petitioners’ contention, the Article 78 challenge to the ZBA’s issuance of the use variance was not timely.  The law provides that the Article 78 proceeding must be instituted within 30 days of the ZBA’s determination being filed in the office of the Town Clerk. Here, the determination as filed on July 18, 2012, and the Article 78 proceeding was commenced on June 13, 2013. The Court also found that Petitioners’ administrative appeal from the issuance of the building permit was untimely.  The Planning Department issued the building permit on August 7, 2012.  It was from that date that the 60–day statutory period began to run, yet Petitioners did not file their appeal until December 20, 2012.  Thus, the filing of the administrative appeal was also untimely.  Accordingly, the Court affirmed the dismissal of the petition, with a bill of costs.

The case was Leitner v. Town of Oyster Bay Planning and Development Dept., 143 A.D.3d 986 (2d Dep’t 2016).

Powered by 123ContactForm | Report abuse