Following a determination by the director of code enforcement that a building permit for a one-story house was mistakenly issued in violation of the local zoning ordinance (the zoning ordinance required a 100-foot setback from the edge of the bluff and the current set-back was only 42 feet), the code enforcement officer issued a stop work order. The petitioner applied to the zoning board for an area variance to allow him to resume construction with a reduced setback. The board denied the variance request. On appeal, the trial court dismissed the proceedings against the Town, and the appellate court affirmed.
The appeals court determined that although the petitioner applied to the zoning board for a variance, he failed to exhaust his administrative remedies in terms of challenging the determination of the code enforcement officer since he neglect to challenge the stop work order within 60 days to the zoning board of appeals. Therefore, the Court may not now consider his request to annul the stop work order.
However, his challenge to the zoning board’s denial of the area variance was not similarly foreclosed. The Court noted, though, that the application for an area variance was an “implicit concession” that the construction activities were not in compliance with the applicable zoning regulations. In upholding the zoning board’s variance denial, the Court found that the board properly considered the applicable statutory factors and concluded that the variance sought was substantial and self-created, and that the granting of the variance would have an undue adverse impact on the physical and environmental conditions in the neighborhood and would produce an undesirable change in the character of the neighborhood.
Although the petitioner alleged a violation of the open meetings law, the Court said that even if the open meetings law was violated, the determination was made after a series of public meetings and after the agreed upon date by which all information had to be submitted. Therefore, the Court concluded that the circumstances do not warrant an annulment of the decision.
Aliano v Oliva, 2010 WL 1611121 (N.Y.A.D. 2 Dept. 4/20/2010).
The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2010/D26656.pdf
