Where petitioners, adjacent property owners, sought to direct the Town zoning officer to revoke a building permit allowing the respondent to construct a single-family residence alleging that the proposed construction violates the minimum front setback requirements, the Appellate Court dismissed the action since the petitioners failed to first seek a review by the zoning board of appeals.  Although the respondents never raised this defense until the case got to the appellate court for review, the Court said that this did not matter, since the Court has no discretionary authority to review the merits of a petition where the parties failed to exhaust their administrative remedies. In dicta, the Court said that had they reached the merits, they would have agreed with the Court below that the front setback for the house to be built, as measured from the edge of the paved portion of the road, does comply with the Town’s zoning law.

 

Charest v. Morrison, 2008 WL 275150 (N.Y.A.D. 4 Dept. 2/1/2008).

 

The opinion can be accessed at:

http://www.courts.state.ny.us/ad4/court/Decisions/2008/02-01-08/PDF/1582.pdf