In the Matter of Ann Letourneau v. Town of Berne

• Decision Date: 03 November 2011
• Citation: 931 N.Y.S.2d 810,2011 N.Y. Slip Op. 07776,89 A.D.3d 1202
• Parties: In the Matter of Ann LETOURNEAU, Appellant,v.TOWN OF BERNE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 1202

931 N.Y.S.2d 810

2011 N.Y. Slip Op. 07776

In the Matter of Ann LETOURNEAU, Appellant,

v.TOWN OF BERNE et al., Respondents.

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

Nov. 3, 2011.

Whiteman, Osterman & Hanna, L.L.P., Albany (John J. Henry of counsel), for appellant.Donald Zee, P.C., Albany (Andrew Brick of counsel), for Town of Berne and others, respondents.Lynch & Hetman, P.L.L.C., Albany (Peter A. Lynch of counsel), for Victor Procopio, respondent.Before: ROSE, J.P., MALONE JR., KAVANAGH, STEIN and McCARTHY, JJ.McCARTHY, J.

Appeal from a judgment of the Supreme Court (Connolly, J.), entered November 4, 2010 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Zoning Board of Appeals of the Town of Berne denying petitioner's request to rescind a certificate of occupancy issued to respondent Victor Procopio.

In 2001, respondent Victor Procopio purchased a parcel of real property abutting Helderberg Lake in the Town of Berne, Albany County. The dwelling on the property had collapsed and been declared unsafe by respondent Peter Schaming, the building and zoning administrator for respondent Town of Berne. Procopio obtained a building permit to demolish the structure and rebuild it. ¹ After construction began, petitioner, who owns a neighboring parcel, made a request that the Town rescind the permit, then commenced a proceeding pursuant to CPLR article 78 seeking to compel such rescission. Supreme Court (Egan Jr., J.) dismissed the petition as untimely and this Court affirmed (56 A.D.3d 880, 866 N.Y.S.2d 462 [2008] ).

In 2009, Procopio completed the construction and the Town issued a certificate of occupancy. Petitioner sent a letter to respondent Zoning Board of Appeals of the Town of Berne seeking rescission of the certificate of occupancy, then commenced a proceeding seeking the same relief and an injunction preventing Procopio from occupying the premises until it was in compliance with local, county and state regulations. The Board dismissed petitioner's appeal, contending that it lacked jurisdiction to interpret county and state regulations. Supreme Court held that the Board had jurisdiction and remanded for the Board to resolve two questions: whether the septic system installed by Procopio constituted new construction under the Town's zoning code and whether Helderberg Lake is a public water source for the Town of Bethlehem, Albany County, such that the system had to comply with certain watershed regulations.

On remand, the Board found that the evidence did not establish that Helderberg Lake was a source of public water and that Procopio's septic system was not a new septic system for new construction, but was a replacement system. Petitioner commenced this proceeding seeking review of the Board's determination and seeking to enjoin Procopio from occupying the premises. Supreme Court (Connolly, J.) dismissed petitioner's application, finding that it was barred by laches and that it failed on the merits. Petitioner appeals.

Initially, although the residence has been completely built, the proceeding is not moot or barred by laches. Petitioner did not delay in seeking to protect her interests. She challenged the building project at the beginning of construction, sought an injunction and continued to complain about the lack of regulatory compliance throughout the process, putting Procopio on notice that she would seek relief and that he was proceeding at his own peril in the face of her challenge ( see Matter of Schupak v. Zoning Bd. of Appeals of Town of Marbletown, 31 A.D.3d 1018, 1019–1020, 819 N.Y.S.2d 335 [2006], lv. denied and dismissed 8 N.Y.3d 842, 830 N.Y.S.2d 694, 862 N.E.2d 786 [2007]; compare Matter of Clarke v. Town of Sand Lake Zoning Bd. of Appeals, 52 A.D.3d 997, 999–1000, 860 N.Y.S.2d 646 [2008], lv. denied 11 N.Y.3d 707, 868 N.Y.S.2d 599, 897 N.E.2d 1083 [2008]; Bailey v. Chernoff, 45 A.D.3d 1113, 1115, 846 N.Y.S.2d 462 [2007] ). Thus, neither laches nor mootness bar this proceeding.

Nevertheless, Supreme Court properly dismissed the petition on the merits. Petitioner, as the party seeking rescission of the certificate of occupancy, bore the burden of showing that the certificate was improperly issued ( see Matter of Hariri v. Keller, 34 A.D.3d 583, 586, 826 N.Y.S.2d 310 [2006] ). Regarding whether Helderberg Lake was a source of public water for the Town of Bethlehem, the Board noted that the submitted documents merely contained “non-conclusive references.” The letter from the Town of Bethlehem's commissioner of public works does not directly state that Helderberg Lake is part of the watershed that supplies water to that town. The letter simply states that the commissioner was transmitting several documents that refer to the lake as being part of that watershed. Thus, although given the chance to...