Opinion
2001-01521
Submitted March 8, 2002.
April 15, 2002.
In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Town of Red Hook Zoning Board of Appeals dated August 16, 2000, which found that the petitioners' appeal of a decision by the Town of Red Hook Zoning Enforcement Officer was untimely, the petitioners appeal from a judgment of the Supreme Court, Dutchess County (Beisner, J.), dated February 7, 2001, which denied the petition and dismissed the proceeding.
Teahan Constantino, Poughkeepsie, N.Y. (Richard I. Cantor of counsel), for appellants.
Keane Beane, P.C., White Plains, N.Y. (Eric L. Gordon and Joel H. Sachs of counsel), for respondent Town of Red Hook Zoning Board of Appeals.
Shanley, Sweeney, Reilly Allen, P.C., Albany, N.Y. (Christopher E. Buckey and J. Stephen Reilly of counsel), for respondent Martin's Foods of South Burlington, Inc.
Before: FRED T. SANTUCCI, J.P., SANDRA J. FEUERSTEIN, SONDRA MILLER, ROBERT W. SCHMIDT, JJ.
ORDERED that the judgment is affirmed, with costs.
Pursuant to Town Law § 267-a(5), the petitioners had 60 days to submit an appeal after the Town of Red Hook Zoning Enforcement Officer filed a determination. The officer found on April 4, 2000, that the proposed development of a supermarket across the street from the petitioners by the respondent Martin's Foods of South Burlington, Inc., was a permitted use pursuant to the local zoning regulations. The officer filed his decision on that date. The petitioners, who were closely involved in proceedings before the planning board with regard to the project, maintained that they were unaware that a determination was made at that time. However, they admit they were aware of the determination on May 15, 2000.
The petitioners, therefore, still had approximately three weeks to submit a timely appeal. Nevertheless, the petitioners did not submit an appeal until June 23, 2000, almost three weeks after the limitations period had expired pursuant to the express terms of Town Law § 267-a(5). The petitioners fail to indicate how their lack of notice of the determination until May 15, 2000, prevented them from filing a timely appeal. Based on these circumstances, there is no unfairness in applying Town Law § 267-a by its express terms and in finding the petitioners' appeal untimely (see Matter of Pansa v. Damiano, 14 N.Y.2d 356; Matter of Rebhan v. Zoning Bd. of Appeals of the Town of Milan, 163 A.D.2d 728; Matter of Cave v. Zoning Bd. of Appeals of Vil. of Fredonia, 49 A.D.2d 228; Matter of Highway Displays v. Zoning Bd. of Appeals of Town of Wappinger, 32 A.D.2d 668).
SANTUCCI, J.P., FEUERSTEIN, S. MILLER and SCHMIDT, JJ., concur.