Kowalczyk v. Town of Amsterdam Zoning Bd. of Appeals

• Decision Date: 10 May 2012
• Citation: 2012 N.Y. Slip Op. 03697,944 N.Y.S.2d 660,95 A.D.3d 1475
• Parties: In the Matter of Stephen KOWALCZYK et al., Appellants, v. TOWN OF AMSTERDAM ZONING BOARD OF APPEALS, Respondent, et al., Respondents. (Proceeding No. 1.). In the Matter of Stephen Kowalczyk et al., Appellants, v. Town of Amsterdam Planning Board, Respondent, et al., Respondents. (Proceedings No. 2.).
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 1475
944 N.Y.S.2d 660
2012 N.Y. Slip Op. 03697

In the Matter of Stephen KOWALCZYK et al., Appellants,
v.
TOWN OF AMSTERDAM ZONING BOARD OF APPEALS, Respondent, et al., Respondents. (Proceeding No. 1.).
In the Matter of Stephen Kowalczyk et al., Appellants,
v.
Town of Amsterdam Planning Board, Respondent, et al., Respondents. (Proceedings No. 2.).

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

May 10, 2012.

[944 N.Y.S.2d 661]

Miller, Mannix, Schachner & Hafner, L.L.C., Glens Falls (Leah Everhart of counsel), for appellants.

Tabner, Ryan & Keniry, L.L.P., Albany (Dana L. Salazar of counsel), for Town of Amsterdam Zoning Board of Appeals and another, respondents.

Before: MERCURE, J.P., LAHTINEN, SPAIN, McCARTHY and GARRY, JJ.

SPAIN, J.

[95 A.D.3d 1475]Appeal from a judgment of the Supreme Court (J. Sise, J.), entered June 7, 2011 in Montgomery County, which, in two proceedings pursuant to CPLR article 78, granted respondents' motion to dismiss the petitions.

Petitioners and respondents David Kaczkowski and Sylvia [95 A.D.3d 1476]Kaczkowski own adjoining parcels of property in a residentially zoned district in the Town of Amsterdam, Montgomery County. The Kaczkowskis acquired their property in 2004 and operate a junkyard as a preexisting nonconforming use that predates the Town's 1972 enactment of zoning, which did not permit such use in a residential zone. In 2007, the Kaczkowskis applied for a use variance to construct a garage on their property in which they planned to dismantle vehicles and sell vehicle parts. Respondent Town of Amsterdam Zoning Board of Appeals (hereinafter ZBA) approved the application for a use variance in November 2008, and the Kaczkowskis were issued a building permit.¹ Petitioners commenced a

[944 N.Y.S.2d 662]

proceeding pursuant to CPLR article 78 challenging the ZBA's issuance of the use variance.

At the Kaczkowskis' request, the ZBA conducted a rehearing at which petitioners spoke in opposition to the application, which the ZBA unanimously ² voted to approve in July 2009 and authorized issuance of a building permit. Petitioners then commenced a second CPLR article 78 proceeding challenging the ZBA's determination to again grant the requested use variance.

Supreme Court subsequently denied the ZBA's motion to dismiss those proceedings and, thereafter consolidated these proceedings into what is now proceeding No. 1. The Kaczkowskis received site plan approval on September 1, 2010 and were issued a certificate of occupancy by the Town Code Enforcement Building Inspector on November 1, 2010. In between those events, on October 6, 2010, petitioners commenced another CPLR article 78 proceeding (proceeding No. 2) challenging the site plan approval by respondent Town of Amsterdam Planning Board and seeking removal of the garage building and a directive that the Kaczkowskis cease and desist use of their property for junkyard purposes to the extent that it was not previously used for such purposes, among other relief.

It is undisputed that, during the pendency of proceeding No. 1, the Kaczkowskis openly undertook the ongoing construction of the proposed garage structure, and this progress was fully visible to petitioners; while the start date and exact progression are not discernible, it is clear that construction was complete by November 1, 2010. Supreme Court subsequently granted a motion by the ZBA—which the Kaczkowskis joined—to dismiss proceeding Nos. 1 and 2 as moot, given that the garage had [95 A.D.3d 1477]been fully constructed and petitioners had failed to seek injunctive relief. Petitioners now appeal.

We affirm. “Typically, the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy” (Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 172, 746 N.Y.S.2d 429, 774 N.E.2d 193 [2002] [citation omitted] ). Where, as here, the change in circumstances concerns a construction project which is completed, while relief is “theoretically available” in...