Posted by: Patricia Salkin | May 3, 2009

Failure to Provide Proper Notice Requires Annulment of Use Variance

 

Following a denial of a special use permit, the Zoning Board of Appeals granted the respondent a use variance to allow him to use property he inherited in an RA-40 zone (permitted uses are residential and agriculture) for mining purposes. Petitioners, neighboring property owners, challenged the variance on the grounds that they did not receive adequate notice under both state statute and under the applicable zoning ordinance.

The appellate court agreed, and annulled the variance. The Court explained that to satisfy notice requirements, the notice must not be misleading, and it must be clear and unambiguous. In this case, the published notice contained the tax parcel address of the subject property but not the property address. This, said the court, at the very least rendered the notice ambiguous. With respect to the issue of personal notice, the Town zoning ordinance provides that at least 10 days before the hearing the applicant shall serve notice of the hearing and an explanation of the variance to all property owners within 200 feet of the subject property either by certified mail (return receipt) or by personal service (with a receipt signed by the property owner). If the notice is mailed, it is to be sent to the last known address as shown by the most recent tax records. In this case, notice was mailed to the petitioner and returned as undeliverable, since the Town sent it to the last address known to the code enforcement officer, but not to the current address as was accurately reflected in the municipal tax records. Therefore, the Court said, notice was not provided as required under the law. Further, the fact that the petitioner found out about the hearing two hours before it was scheduled and the petitioner did show up and voice objection and concerns, this did not cure the notice failure since the lack of adequate notice deprived the petitioner of the “opportunity to meaningfully participate in the hearing and frustrated the purpose and intent of the hearing requirement.”

Jones v. Zoning Board of Appeals of the Town of Oneonta, 2009 WL 1149504 (N.Y.A.D. 3 Dept. 4/30/2009).

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2009/505158.pdf


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