Opinion
No. 56535.
09-27-2016
In the Matter of the Application of MARY T. PROBST FAMILY TRUST, Alice Altieri, Trustee, Petitioner, for Judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. ZONING OFFICER OF the TOWN OF HORICON, Town of Horicon Zoning Board of Appeals, Town of Horicon Planning Board, Respondents.
Alice Altieri, Menands, petitioner pro se. Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Leah Everhart of counsel), for respondents.
Alice Altieri, Menands, petitioner pro se.
Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Leah Everhart of counsel), for respondents.
ROBERT J. MULLER, J.
Since 1983, petitioner has owned a .26–acre parcel of property located on Brant Lake in the Town of Horicon, Warren County. In 2004, prospective purchasers—Thomas and Mary Hoare—applied to the Town of Horicon Planning Board for a variance to construct a home on the lot. Petitioner executed a document designating, among other, Thomas Hoare as her agent in applying to the "necessary board[s]". One of the arguments advanced by Hoare's attorney before the Planning Board was that the lot was a pre-existing lot and thus exempt from minimum size requirements. The Planning Board rejected this argument in June 2004 and denied the variance, resulting in the sale of the lot falling through. Petitioner's subsequent application for a variance to build a small cottage where a garage was located on the lot was denied by the Town of Horicon Zoning Board of Appeals (hereinafter ZBA) and that denial was upheld (see Matter of Mary T. Probst Family Trust v. Zoning Bd. of Appeals of Town of Horion, 79 AD3d 1427 [2010], lv denied 16 NY3d 708 [2011] ).
In June 2011, petitioner wrote to the Planning Board setting forth details of the history of the lot. She urged that the lot had, in fact, been in existence since 1973 and, thus, should have been classified as "pre-existing". The Planning Board responded that it no longer had jurisdiction to act on her request and she was thereafter informed that, as a result of a change in the local ordinance in 2005, the Zoning Administrator had the authority to determine if a lot was pre-existing. When she submitted her application under the new ordinance, the Zoning Administrator told her in an August 2011 letter that he did not have authority to overturn the Planning Board's June 2004 determination. Thereafter, the Zoning Administrator informed her that his determination in the August 2011 letter could not be appealed to the ZBA.
When her inquiry to the ZBA requesting review of the Zoning Administrator's determination went unanswered, she commenced, pro se, this CPLR article 78 proceeding seeking, among other things, an order directing that the ZBA consider her application. Respondent's pre-answer motion to dismiss was denied (Matter of Mary T. Probst Family Trust v. Zoning Officer of the Town of Horicon et al., Sup Ct, Warren County, Aug. 29, 2012) and, after an extensive delay, respondents finally filed an answer in September 2015. Petitioner's motion to strike the late answer was denied and respondents' cross-motion to compel petitioner to accept the answer was granted (Matter of Mary T. Probst Family Trust v. Zoning Officer of the Town of Horicon et al., Sup Ct, Warren County, May 23, 2016). Respondents have submitted a memorandum of law urging that no board or person in the Town has the authority to consider petitioner's application because the issue was previously addressed in 2004.
It is, of course, correct that a challenge to a board determination regarding zoning must be brought within 30 days of the decision becoming final (see Town Law § 267–c [1 ]; Kreamer v. Town of Oxford, 91 AD3d 1157, 1159 [2012] ; Matter of Green Harbour Homeowners' Assn. v. Town of Lake George Planning Bd., 1 AD3d 744, 745 [2003] ). Moreover, once a board's determination is final and any available judicial relief has been exhausted, a party cannot "relitigat[e] claims that were or could have been litigated in the prior determination" (see Matter of Ireland v. Zoning Bd. of Appeals of Town of Queensbury, 195 A.D.2d 155, 158 [1994] ; Matter of Freddolino v. Village of Warwick Zoning Bd. of Appeals, 192 A.D.2d 839, 840–841 [1993] ). However, a change in facts and circumstances can justify a new application and, even absent such a change, zoning boards have authority to rehear or reopen a matter (see Matter of Ireland v. Zoning Bd. of Appeals of Town of Queensbury, 195 A.D.2d at 159 ; Town Law § 267–a [12 ]; Terry Rice, Practice Commentaries, McKinney's Cons Laws of NY, Book 61, Town Law § 267–a, at 43 ; 2 Patricia E. Salkin, New York Zoning Law and Practice §§ 28:34, 28:35 [4th ed]; see also Matter of Walsh v. Superintendent of Highways of Town of Poestenkill, 135 A.D.2d 968, 969 [1987], lv denied 72 N.Y.2d 808 [1988] [administrative agencies have discretionary power to rehear or reopen matters] ).
Here, although the 2004 Planning Board determination was made based upon an application by the prospective purchaser (Hoare) and not petitioner, respondents have produced a notarized document whereby petitioner designated Hoare as her agent to act before the board. Accordingly, the Planning Board determination is binding on petitioner (see Matter of Timm v. Van Buskirk, 17 AD3d 686, 686–687 [2005] ) and the time to directly challenge that determination has long since expired. Nonetheless, petitioner can make an application asserting changed circumstances or seeking to have the board reopen the issue. Petitioner has attempted to make, in essence, such an application for an appropriate board to rehear the issue ostensibly based on additional information and the fact that she is the actual landowner (see Matter of Sicilano v. Scheyer, 131 A.D.2d 679, 680 [1987] ). The Planning Board stated that consideration of the application is now outside its jurisdiction, the Zoning Administrator claimed to lack power to consider the application and ZBA simply failed to respond to her. Although an application to reopen an issue rests largely in the discretion of the board considering the issue (see Matter of Green 2009, Inc. v. Weiss, 114 AD3d 788, 789 [2014], lv denied 23 NY3d 903 [2014] ; Matter of Moore v. Town of Islip Zoning Bd. of Appeals, 28 AD3d 772, 772 [2006] ; Matter of Pettit v. Board of Appeals of Town of Islip, 160 A.D.2d 1006, 1007–1008 [1990] ), an avenue must exist for a landowner to make such an application. Petitioner has established that respondents have denied her that avenue. It appears from the papers before the Court that the ZBA is the proper body to consider petitioner's application. Accordingly, the petition is granted to the extent that the ZBA is directed to consider petitioner's application. All other relief sought in the petition is denied.
Based upon the foregoing analysis and upon review of the papers as enumerated hereinafter, it is
ORDERED AND ADJUDGED that the respondents are directed to consider and decide petitioner's application (and any supplement she may provide thereto with 10 days of service with Notice of Entry of this Decision and Judgment) within 40 days following the receipt of petitioner's supplement, if any, within the 10 days as allotted; and it is further
ORDERED AND ADJUDGED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.
The above constitutes the Decision and Judgment of this Court.
The original of this Decision and Judgment has been filed by the Court together with the Notice of Petition dated November 8, 2011 and the submissions enumerated below. Counsel for Respondents are hereby directed to promptly obtain a filed copy of the Decision and Judgment for service with notice of entry in accordance with CPLR 5513.
Papers reviewed:
1. Verified Petition dated November 8, 2011 with Exhibits "1" through "13";
2. Verified Answer dated August 28, 2015;
3. Administrative record (pp R001–R147) and the
4. Respondents' Memorandum of Law dated July 15, 2016.