Posted by: Patricia Salkin | November 30, 2008

Court Dismisses Claim Since Petitioner Failed to Raise Issue Before Zoning Board of Appeals

Since in an earlier 1991 proceeding, the appellate court concluded that the petitioner’s subdivision of two lots did not qualify as “[e]xisting lots of record” under the applicable Town Ordinance which would have exempted the lots from the minimum one-acre requirement imposed by the zoning ordinance, the zoning enforcement officer informed the petitioner in 2007 that a building permit could not be issued for the two lots.  The petitioner applied to the zoning board of appeals for an area variance, which was denied.


The trial court concluded that the petitioner failed to preserve his argument that the two lots, as combined, were existing lots of record since he did not raise this issue before the zoning board of appeals, and then said that the argument lacked merit based upon the Court’s 1991 decision.  However, the trial court annulled the denial of the variance and remanded the matter to the zoning board f appeals.  The petitioner appealed only that part of the judgment that determined that the combined lots do not constitute an existing lot of record.


The appellate court concluded that since the petitioner failed to raise this issue before the zoning board, the trial court’s ruling with respect to this issue was merely dictum and has no effect.  Therefore, the appellate court said the petitioner is not an aggrieved thereby and dismissed the appeal. 


Showers v. Town of Poestenkill Zoning Board of Appeals, 2008 WL 4999170 (N.Y.A.D. 3 Dept. 11/26/2008).


The opinion can be accessed at:

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