In 2009, the respondents leased property in the B-1 district in the Town of Maine, New York, and began to operate a firewood processing and retail establishment. When the respondents learned they would need to have a site plan approved for the use, they timely applied and were approved in April of 2010. The petitioner, Loparco, was an adjoining land owner and was notified of the application. Lopacro was at the April meeting, which also addressed whether the use was permitted in the zone district. Loparco appealed to the Zoning Board of Appeals in September 2010. Loparco then appealed to the Supreme Court, the petition was dismissed, and this appeal ensued.
The appellate court found both appeals were appropriately dismissed. The administrative appeal to the Zoning Board of Appeals was made in September of 2010. To be timely, such an appeal must be made within sixty days of the decision. The petitioner was clearly untimely. In addition, the Article 78 petition to the Supreme Court must have been made within four months. The court found the petitioner failed to meet this deadline as well.
These two appeals not only addressed the determination of whether the business was permitted in the district, but also concerned the respondents’ compliance with conditions imposed by the locality. The local officer investigated and determined the respondent complied with the site plan approval conditions. The court ruled that this issue was a discretionary determination outside the scope of an Article 78 special proceeding, and thus the court lacked jurisdiction over the claim. The court further found that the Zoning Board of Appeals appropriately did not address the issue because the claim was not raised in the formal written appeal.
Loparco v. Napierala, 96 A.D.3d 1213 (3rd Dep’t, June 14, 2012).
The opinion can be accessed here.