Frank v. Zoning Bd. of Town of Yorktown

• Decision Date: 01 March 2011
• Parties: In the Matter of Howard FRANK, et al., appellants, v. ZONING BOARD OF TOWN OF YORKTOWN, et al., respondents.
• Court: New York Supreme Court — Appellate Division

917 N.Y.S.2d 697
82 A.D.3d 764

In the Matter of Howard FRANK, et al., appellants,
v.
ZONING BOARD OF TOWN OF YORKTOWN, et al., respondents.

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

March 1, 2011.

917 N.Y.S.2d 698

David O. Wright, Yorktown Heights, N.Y., for appellants.

Milber Makris Plousadis & Seiden, LLP, White Plains, N.Y. (Thomas H. Kukowski of counsel), for respondent Zoning Board of Town of Yorktown.

A. GAIL PRUDENTI, P.J., RANDALL T. ENG, ARIEL E. BELEN, and SANDRA L. SGROI, JJ.

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Town of Yorktown, dated May 28, 2009, which, after a hearing, granted an application for area variances, the petitioners appeal from a judgment of the Supreme Court, Westchester County (Holdman, J.), entered April 13, 2010, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

Homeowners Tom Knoesel and Joan Knoesel (hereinafter together the Knoesels) applied to the Zoning Board of Town of Yorktown (hereinafter the Board) for an area variance to legalize an existing fence

917 N.Y.S.2d 699

which was taller than permitted by the Town Code. The Knoesels subsequently requested variances for two small sheds on their property which did not meet setback requirements, and the Board amended their application to include this relief. The Board granted the application, concluding, inter alia, that legalizing the fence would not have an adverse impact on the neighborhood. The petitioners, who are neighbors of the Knoesels, thereafter commenced this proceeding pursuant to CPLR article 78 to review the Board's determination. The Supreme Court denied the petition and dismissed the proceeding, concluding that the Board's determination was rational and not arbitrary and capricious. We affirm.

Contrary to the petitioners' contention, the Board's failure to file its written decision in the office of the town clerk within five business days after it was rendered does not mandate annulment of its determination ( see Town Law § 267-a[9] ). Town Law § 267-a(9) does not specify a sanction for failure to comply with the five-day filing requirement ( see generally Nyack Hosp. v. Village of Nyack Planning Bd., 231 A.D.2d 617, 618, 647 N.Y.S.2d 799). In any event, the Board offered a reasonable explanation for its delay in filing its written decision, and the delay was not extensive ( see Matter of Platzman v. Munno, 184...