Crowell v. Zoning Bd. of Appeals of Queensbury

• Decision Date: 08 June 2017
• Parties: In the Matter of William CROWELL, Respondent, v. ZONING BOARD OF APPEALS OF the TOWN OF QUEENSBURY et al., Appellants.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 1247

56 N.Y.S.3d 618

In the Matter of William CROWELL, Respondent,

v.ZONING BOARD OF APPEALS OF the TOWN OF QUEENSBURY et al., Appellants.

Supreme Court, Appellate Division, Third Department, New York.

June 8, 2017.

FitzGerald Morris Baker Firth, PC, Glens Falls (Michael Crowe of counsel), for Zoning Board of Appeals of the Town of Queensbury and another, appellants.

Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (John D. Wright of counsel), for William Roberts and another, appellants.

Whiteman Osterman & Hanna, LLP, Albany (John J. Henry of counsel), for respondent.

Before: PETERS, P.J., McCARTHY, EGAN JR. and MULVEY, JJ.

PETERS, P.J.

Appeal from a judgment of the Supreme Court (Krogmann, J.), entered December 11, 2015 in Warren County, which granted petitioner's application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to annul a determination of respondent Zoning Board of Appeals of the Town of Queensbury issuing building permits to respondents William Roberts and Pamela Roberts.

Respondents William Roberts and Pamela Roberts seek to reconstruct two single-family dwellings situated on their property in the Town of Queensbury, Warren County. The property is located within the Town's waterfront residential zoning district, which contains a density provision limiting each lot to one single-family structure. The two structures at issue predate the adoption of the Town's zoning code and, therefore, constitute prior nonconforming structures.

In December 2013, the Robertses submitted a proposed project to respondent Craig Brown, the Town's Zoning Administrator, seeking a determination as to what approvals were necessary for the demolition and reconstruction of the two structures. Brown advised the Robertses that the proposed project required, among other things, area variances for certain setback requirements as well as "a variance" to construct a second dwelling on the same lot. The Robertses promptly applied to respondent Zoning Board of Appeals of the Town of Queensbury (hereafter ZBA) for the necessary variances, and the application came on for a hearing before the ZBA in January 2014. Prior to the hearing, petitioner, a neighboring property owner, submitted a letter to the ZBA opposing the variance application on the ground that the construction of two single-family homes on the Robertses' lot required a use variance and that the Robertses' variance application should be denied due to their failure to satisfy the requisite criteria for such a variance. After considering, among other things, the letters in support of and in opposition to the project and applying the statutorily prescribed criteria for an area variance (see Town Law § 267–b [3 ][b] ), the ZBA granted the requested area variances from the minimum setback requirements and the applicable density requirement of one single-family dwelling per lot. The resolution approving such variances was filed in the office of the Town Clerk on January 23, 2014.

On November 26, 2014, the Town's Code Enforcement Officer issued building permits for the proposed reconstruction. On January 16, 2015, petitioner filed an appeal with the ZBA challenging the issuance of the building permits, again arguing that the construction of two single-family homes on the Robertses' lot requires a use, rather than an area, variance pursuant to the Town's zoning code. At the conclusion of a public hearing, the ZBA adhered to its prior determination that an area variance was required for relief from the Town's density requirement and upheld the issuance of the building permits. Petitioner thereafter commenced this combined CPLR article 78 proceeding and action for declaratory judgment seeking, among other things, to annul the ZBA's determination upholding the issuance of the building permits and to enjoin the Robertses from further construction of the two single-family dwellings. Respondents separately moved to dismiss the petition/complaint asserting, among other things, that petitioner's claims were time-barred. By order entered in June 2015, Supreme Court denied respondents' respective motions and declined to preliminarily enjoin construction on the property. After respondents answered, petitioner moved for summary judgment on his claims and the Robertses cross-moved for summary judgment dismissing the petition/complaint. Supreme Court granted the petition, rescinded the building permits and enjoined any further construction of a second residence on the property, concluding that an area variance was insufficient to permit the reconstruction of a prior nonconforming structure pursuant to the Town's zoning code. Respondents appeal.

Because petitioner's challenge to the issuance of the building permits should have been dismissed as untimely, we reverse. There is no dispute that petitioner administratively appealed the issuance of the building permits to the ZBA within the 60–day limitations period prescribed by Town Law § 267–a (5)(b) and, further, that this CPLR article 78 proceeding challenging the ZBA's decision to uphold the permits was commenced within the 30–day time frame mandated by Town Law § 267–c (1). However, the fact that petitioner denominated his challenge as one to the issuance of the building permits does not control for statute of limitations purposes. In order to determine the applicable limitations period and the event that triggered its commencement, "we must first ascertain what administrative decision petitioner is actually seeking to review and then find the point when that decision became final and binding and thus had an impact upon petitioner" (Matter of City of Saratoga Springs v. Zoning Bd. of Appeals of Town of Wilton, 279 A.D.2d 756, 758, 719 N.Y.S.2d 178 [2001] [internal quotation marks and citations omitted]; see Matter of Young v. Board of Trustees of Vil. of Blasdell, 89 N.Y.2d 846, 848, 652 N.Y.S.2d 729, 675 N.E.2d 464 [1996] ; Matter of Green...