New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Supreme Court Justice Donald Cerio ruled in two Article 78 proceedings involving the town of Sullivan and a proposed mining operation. Petitioners brought about the appeal to annul Local Law No. 6 regarding Mineral Resource Use and Mining/Quarrying Use districts in the town. Cerio’s ordered the Town of Sullivan Zoning Board of Appeals (ZBA) to holding a hearing to determine whether mining is a permitted use in an agricultural zone. He based his decision on a lack of observance of the State Quality Environmental Review Act and a lack of a certified transcript from the ZBA’s last hearing. Many Quarry Road residents are protesting the mining operation and feel that mining should not be permitted.

The ZBA must make a decision within sixty days of the Judge’s ruling.

Read more about this Article 78 zoning case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Michael Mimassi v Town of Whitestown Zoning Board of Appeals

Petitioner brought about this Article 78 proceeding to challenge a judgment of the Supreme Court dismissing a petition to review a determination of the Whitestown Zoning Board of Appeals (ZBA). Petitioner purchased property in the Town of Whitestown that included a farmhouse that had been converted into a three-family dwelling. The Town’s Code does not permit multifamily dwellings but since this farmhouse was converted prior to the passage of the current Code, the building was permitted to remain as a preexisting nonconforming use. Petitioner proceeded to convert the barn into eight apartment units which prompted the Town’s Codes Enforcement Officer to issue an “order to remedy violation” and ordered the tenants to vacate. Petitioner then appealed to the ZBA which affirmed the order to remedy violation and determined that the construction of the apartment units violated the Code. Petitioner then filed an Article 78 appeal to annul the determination in Supreme Court. The petition was dismissed prompting this appeal.

The Court felt that since the Code prohibits multifamily dwellings, the expansion of the barn would nullify the acceptable preexisting nonconforming use and therefore the ZBA’s determination was not arbitrary and capricious. Petitioner did not take into account the ordinances addressing the issue of a nonconforming use and his discrimination argument lacked extrinsic evidence of clear and intentional discrimination sufficient to require a trial.

Accordingly, the Supreme Court affirmed the judgment so appealed from, without costs.

Read more about this Article 78 zoning board appeal.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Craig Emmerling and Lynn Emmerling v Town of Richmon Zoning Board of Appeals

This article 78 appeal was brought about to challenge a judgment of the Supreme Court dismissing a petition. Petitioners commenced an article 78 appeal to reverse the determination of the Town of Richmond Zoning Board of Appeals (ZBA) that required a site plan review by the Town Planning Board prior to petitioners being allowed to erect a fence on their property. The Supreme Court dismissed their appeal which led to this proceeding.

The Court feels that Supreme Court erred in dismissing the petition in its entirety. The ZBA’s determination that a site plan review was required prior to petitioners’ erection of a fence was contrary to the Zoning Laws. The Court found that respondents’ argument that the review was required due to the fence changing the traffic flow on petitioners’ property was against merit, as was the contention that a review was necessary due to the fence not being included in the original site plan for petitioners’ property. The Court felt that the ZBA’s interpretation of the zoning code was irrational, unreasonable, and inconsistent.

Accordingly, the Supreme Court reversed the judgment so appealed from, granted the petition and annulled the determination.

Read more about this Article 78 zoning board appeal.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Anna Wei v Planning Board of Town/Village of Harrison

Petitioner brought about this Article 78 appeal to review a determination of the Planning Board of the Town/Village of Harrison denying her application to subdivide her property. The neighboring landlords then appealed from a decision of the Court which annulled the determination and remitted the issue to the Planning Board of the Town/Village of Harrison in order to make and specify factual findings as basis for its determination.

The Court finds that the order appealed from is not appealable as of right.

Accordingly, the Supreme Court dismissed the appeal, with costs.

Read more about this Article 78 Planning Board appeal.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Joseph Anayati v Board of Zoning Appeals of Town of North Hempstead

In this Article 78 case, petitioners sought to review a determination of the Board of Zoning Appeals (hereinafter BZA) of the Town of North Hempstead dismissing their application for area variances. In 2003, petitioners began building a home in North Hempstead. They received a building permit and a certificate of occupancy. Three years later, petitioners were given an appearance ticket from the Town’s Building Inspector alleging that their home violated two Town Code provisions. Petitioners then applied to the BZA for a determination that their building permit and certificate of occupancy were valid or alternately for area variances necessary to maintain the house.

The BZA dismissed petitioners’ application claiming that they lacked jurisdiction. Petitioners then commenced this Article 78 appeal to review the BZA’s determination. The Supreme Court denied the petition which resulted in another appeal to which the Court reversed the decision. The Court agreed with petitioners’ contention that the BZA has jurisdiction to review the Building Inspector’s determination that the house violated Town Code and the BZA has the ability to grant area variances.

Accordingly, the Supreme Court reversed the judgment, granted the petition, and annulled the determination remitting the matter to the ZBA to consider petitioners’ application on the merits.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Danny Alcantara v. Zoning Board of Appeals, Village of Ossing, State of New York

Petitioner applied to the Zoning Board of Appeals (ZBA), Village of Ossining, State of New York for an area variance regarding renovation of the commercial portion of the mixed use residential and commercial area. After a hearing, the ZBA denied Petitioner’s application. Petitioner then appealed to the Supreme Court, Westchester County which granted the petition and remitted the matter to the ZBA. The ZBA appealed this decision to the Appellate Division that ordered that the previous judgment be reversed because the determination of the ZBA was rational, not arbitrary and capricious. 

Read full article here.

To read about Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Shelter Island Association v Zoning Board of Appeals of Town of Shelter Island

This Article 78 appeal was brought about to challenge the decision of the Zoning Board of Appeals of the Town of Shelter Island granting respondent John Meister’s application for an accessory apartment variance. Supreme Court denied petitioners’ motion for leave to amend the petition to add additional petitions and granted respondents’ motion to dismiss the proceeding. Petitioners then commenced this appeal.

The originally named petitioners include three individuals and a homeowner association. The Court feels that they lack standing to commence an instant proceeding because they were unable to establish that any of the individual petitioners or members of the association would suffer any environmental injury different from what would affect the public at large. The petitioners made a cross-motion to amend the petition and add petitioners who met the criteria for standing but the Court found that even with the added petitioners their allegations of increased traffic and the effect on the water table from additional tenants would be insufficient to establish such standing.

Accordingly, the Court affirmed the judgment, with costs.

Read the full article here.

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Zupa v. Zoning Board of Appeals of Town of Southhold  Index #29166/06 Appellate Division, Second Department

Zupa appealed Southold's interpretation of the Town Code sect 280-121(A) that the proposed realignment of the dock/marina would not be a change that would render inapplicable the provisions concerning non-conforming uses.  The Court held that the Town Board decision was rational and not arbitrary and capricious.  The appeal was dismissed. Read the decision here:   www.nycourts.gov/reporter/3dseries/2008/2008_08748.htm

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