Haberman v. Zoning Bd. of Appeals

• Decision Date: 19 November 2007
• Docket Number: 132.
• Citation: 849 N.Y.S.2d 189,9 N.Y.3d 269,879 N.E.2d 728
• Parties: In the Matter of Sinclair HABERMAN et al., Appellants, v. ZONING BOARD OF APPEALS OF CITY OF LONG BEACH et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

879 N.E.2d 728

9 N.Y.3d 269

849 N.Y.S.2d 189

In the Matter of Sinclair HABERMAN et al., Appellants, v. ZONING BOARD OF APPEALS OF CITY OF LONG BEACH et al., Respondents.

132.

Court of Appeals of New York.

November 19, 2007.

Davis Wright Tremain LLP, New York City (Victor A. Kovner and Lacy H. Koonce, III, of counsel), and Duane Morris LLP (Thomas R. Newman of counsel), for appellants.

Corey E. Klein, Corporation Counsel, Long Beach, for Zoning Board of Appeals of City of Long Beach and others, respondents.

Davidoff Malito & Hutcher, LLP, Garden City (Michael Zapson of counsel), for Xander Corp., respondent.

Whiteman Osterman & Hanna LLP, Albany (Howard A. Levine and William S. Nolan of counsel), for New York State Builders Association, Inc., amicus curiae.

[849 N.Y.S.2d 273]

OPINION OF THE COURT

SMITH, J.

We hold that, where a zoning board of appeals has voted to grant a variance, the board's lawyer, acting with actual or apparent authority, may agree to extend the time to build the improvements permitted by the variance. A second board meeting and vote are not required.

Facts and Procedural History

Sinclair Haberman sought a variance from the City of Long Beach Zoning Board of Appeals (ZBA) to build a four-tower residential condominium complex. The ZBA granted the variance, but after one of the towers was built a dispute arose about the other three. Haberman brought a lawsuit against the City, the ZBA and the City's building commissioner, which was settled by a stipulation in 1989.

Paragraph 4 of the stipulation said that Haberman would apply for new variances to permit construction of the remaining three buildings. These variances were to be subject to certain conditions, including time limits in which Haberman must apply for building permits: within five years of the grant of the variance for building 2, 6½ years for building 3 and seven years for building 4. In paragraph 5 of the stipulation, Haberman agreed to pay $200,000 to the City to fund public improvements for the benefit of his project, including the installation of underground utility lines; and the City agreed to begin construction of the improvements not later than two years after receiving the $200,000.

Haberman did apply for the new variances, and the ZBA granted them on August 4, 1989. Haberman paid the $200,000 to the City in December 1989, so that, under paragraph 5 of the

[849 N.Y.S.2d 274]

stipulation, the City was required to install the underground utility lines not later than December 1991. That deadline was not met, and the City asked Haberman for an extension of time. Haberman agreed to grant it, on condition that the paragraph 4 time limits, governing his time to apply for building permits, were also extended.

These terms were reflected in a letter dated April 7, 1992 from Haberman to the City's Corporation Counsel, who represented all the defendants — including the ZBA — in Haberman's lawsuit. The letter said, in relevant part:

"The undersigned Plaintiff-Petitioner in the above entitled action does hereby agree to extend the time of The City of Long Beach (`The City'), to comply with paragraph `5' of the Stipulation of Settlement of the above entitled action, dated March 8, 1989 (`Stipulation'), without time limitation.

"In consideration for this extension, it is agreed by the parties that the time limitations contained and set forth in paragraph `4' of the Stipulation shall be tolled and shall not run against the Plaintiff-Petitioner until such time as The City has complied with the terms of paragraph `5' of the Stipulation. . . .

"Please indicate all of the defendants' consent to the foregoing by signing and returning the enclosed copy of this letter."

The Corporation Counsel signed an acknowledgment that he "consented and agreed to" the April 1992 letter as attorney for all of the defendants, including the ZBA. The letter agreement was then attached to a new stipulation, providing that the 1989 stipulation "be, and hereby is, modified in accordance with the letter dated April 7th, 1992." The new stipulation was signed by counsel for all parties and "so ordered" by Supreme Court.

For the next decade, it seems, nothing of significance happened. The City did not install the underground utility lines, and Haberman did not apply for a building permit. Finally, in 2002, Haberman's construction company applied for a permit to begin work on building 2, and in 2003 the City's Building Department issued the permit. The cooperative corporation that had acquired building 1 back in the 1980s opposed the new construction, and asked the ZBA to revoke the permit; the ZBA did so, relying on Haberman's failure to meet the schedule

[849 N.Y.S.2d 275]

contained in the 1989 stipulation. The ZBA rejected the argument that Haberman's time had been extended by the ...