The petitioners, owners of property adjacent to the lakefront property owned by respondents, the issuance of a building permit to respondents to permit the construction of a home 28 feet from the shoreline on one side and 35 feet from the shoreline on the other side, rather than the required 100 feet setback. The planning board approved the modifications in June 2006, and the respondents and their predecessor in interest removed five dilapidated trailers from the property, some of which were five feet from the shoreline and had inadequate septic systems, although they could have remained as nonconforming uses. Following the June 2006 issuance of a building permit, excavation began in July 2006 and a certificate of occupancy for a modular home was issued in October 2006. Shortly thereafter, the petitioner unsuccessfully sought an injunction and appealed the action to the zoning board of appeals. Petitioner did not appeal the dismissal of the action at the trial court. Following the zoning board’s determination that the building permit and construction were in compliance with all applicable laws, the petitioners challenged the board’s determination in court. The trial court dismissed the petition partly on the merits and partly on the basis of collateral estoppel due to the prior court decision.
The appellate court held that the statute of limitations bars petitioners’ present challenge to the issuance of the building permit. N.Y. Town Law requires an appeal of the issuance of a building permit within 60 days after filing (see, Town Law §267-a[5][b]), and the local ordinance requires appeals to be taken within 30 days of any determination by the code enforcement officer. The Court noted that the permit was issued on June 9, 2006, and that the petitioner, who lives next door was aware that the construction was taking place at least by July 14, 2006. Therefore, the appeal with respect to the building permit in October 2006 was untimely both under the state statute and the local ordinance. However, the appeal with respect to the issuance of the certificate of occupancy was timely, but it was barred by the doctrine of laches since the petitioner delayed her actions seeking to protect her property interest until after the construction was complete, even though she was on notice throughout the permitting and construction phases.
Clarke v. Town of Sand Lake Zoning Bd. of Appeals, 2008 WL 2369824 (N.Y. A.D. 3 Dept. 6/12/2008).
The opinion can be accessed at:
http://decisions.courts.state.ny.us/ad3/Decisions/2008/503554.pdf
