Ireland v. Town of Queensbury Zoning Bd. of Appeals
| Decision Date | 27 June 1991 |
| Parties | In the Matter of Blanche A. IRELAND, et al., Appellants, v. TOWN OF QUEENSBURY ZONING BOARD OF APPEALS, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Le Boeuf, Lamb, Leiby & MacRae (Robert J. Alessi, of counsel), Albany, for appellants.
Paul B. Dusek, Queensbury, for Town of Queensbury Zoning Bd. of Appeals, respondent.
John H. Richards, Glens Falls, for Frank J. Parillo, respondent.
Before CASEY, J.P., and WEISS, MIKOLL, LEVINE and CREW, JJ.
Appeal from a judgment of the Supreme Court (Dier, J.), entered June 13, 1990 in Warren County, which, in a combined action for declaratory judgment and proceeding pursuant to CPLR article 78, granted respondents' motions to dismiss the complaint/petition.
In early 1989, respondent Frank J. Parillo purchased 24.33 acres of real property which was part of a marina consisting of docks and a boat launch on Lake George in the Town of Queensbury, Warren County. The previous owner of the boat launch had opened it for public use; however, such use had been sporadic. Parillo improved the launching area and opened it for public use for a fee. In June 1989, the Town's Director of Building and Code Enforcement advised Parillo that, although the marina consisted of a nonconforming use, because boat launching activities by the public had ceased more than 18 months prior to his acquisition of the property, he was obliged to file an application for a variance.
Parillo appealed that decision to respondent Town of Queensbury Zoning Board of Appeals. A notice of public hearing was published advising that Parillo's application for a notice of appeal would be considered at the Zoning Board's July 1989 meeting. Additionally, notice of the meeting was sent to area residents, including petitioner Blanche A. Ireland, advising that as property owners in the immediate vicinity they could appear and be heard. Parillo's attorney appeared at the hearing and advanced several reasons why his client should not be required to obtain a variance. Apparently, no members of the public were allowed to be heard. Following the hearing, the Zoning Board voted unanimously to deny Parillo's appeal. Subsequently, Parillo submitted an application for a variance and requested a rehearing by the Zoning Board. No action was ever taken upon Parillo's application for a variance because it was tabled.
In October 1989, upon a motion by one of its members, the Zoning Board voted 5 to 1 to review its July 1989 decision based upon newly discovered evidence. At a December 1989 hearing, the Zoning Board was advised by the Town Attorney that its July hearing relating to Parillo's appeal was a nullity because the public was not afforded an opportunity to be heard. He also advised the Zoning Board that its October vote relating to rehearing its July decision was improper in that a unanimous vote was required to rehear its previous decision. The Town Attorney further advised the Zoning Board that, in view of the fact that its July 1989 and October 1989 proceedings were contrary to law, it could consider Parillo's appeal anew. The Zoning Board then voted 5 to 2 that no application was required for a use variance by Parillo because there was no total cessation of boat-launching activities by the public for more than 18 months.
Ireland and petitioner Lake George Association (hereinafter the Association) commenced this combined action for declaratory judgment and proceeding pursuant to CPLR article 78 alleging, inter alia, that the Zoning Board's proceedings were not conducted in accordance with Town Law § 267. After interposing their answers, respondents each moved to dismiss petitioners' action/proceeding on several procedural grounds as well as on the merits. Supreme Court dismissed petitioners' complaint/petition in its entirety, and this appeal ensued.
Parillo contends that the complaint/petition was properly dismissed because petitioners lacked standing to challenge the procedures of the Zoning Board. We disagree. Ireland has standing to challenge the procedures of the Zoning Board based upon her ownership of real property adjoining Parillo's land and the costs incurred by her to repair damage to her shoreline caused by boat traffic from Parillo's marina (see, Matter of Rosch v. Town of Milton Zoning Bd. of Appeals, 142 A.D.2d 765, 766-767, 530 N.Y.S.2d 321). Additionally, the Association has standing (cf., Matter of Clinton v. Summers, 144 A.D.2d 145, 147, 534 N.Y.S.2d 473) and any challenge to its unverified complaint/petition by the Zoning Board was waived in that it was not raised within 24 hours (see, Matter of Lentlie v. Egan, 94 A.D.2d 839, 840, 463 N.Y.S.2d 542, affd. 61 N.Y.2d 874, 474 N.Y.S.2d 467, 462 N.E.2d 1185). As to Parillo's challenge to the Association's unverified complaint/petition, there is no evidence that a substantial right has been prejudiced and the complained of defect should therefore be ignored (see, CPLR 3026; Matter of Nafalski v. Toia, 63 A.D.2d 1039, 406 N.Y.S.2d 140; State of New York v. McMahon, 78 Misc.2d 388, 356 N.Y.S.2d 933).
The pivotal issue on this appeal is whether the July hearing of the Zoning Board was conducted in accordance with the Town Law. Responde...
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