NY Appellate Court Dismisses as Time Barred a Petition to Vacate a Use Variance

This case arose from an Article 78 petition review of a determination of the Zoning Board of Appeals of the Town of Oyster Bay, which granted the application of the respondent Karen Malamud for a use variance, and to vacate a permit issued by the respondent Town of Oyster Bay Department of Planning and Development. In this case, petitioners appealed from an order and judgment of the Supreme Court, Nassau County, which granted the respondents’ separate motions to dismiss the petition as time-barred and denied the petition and dismissed the proceeding.

The court found that contrary to the petitioners’ contention, the CPLR article 78 challenge to the ZBA’s issuance of the use variance was not timely, since the petition was required to have been instituted within 30 days after the ZBA’s determination was filed in the office of the Town Clerk. Here, that filing occurred on July 18, 2012, and this proceeding was commenced on June 13, 2013. Additionally, the petitioners’ administrative appeal challenging the issuance of the building permit also was untimely, as the Planning Department issued the building permit on August 7, 2012, and the 60–day statutory period began to run on that date. As such, the petitioners’ December 20, 2012, filing of their administrative appeal to the ZBA was untimely.

Leitner v. Town of Oyster Bay Planning and Development Dept, 2016 WL 6270096 (NYAD 2 Dept. 10/26/16)