Haberman v. Zoning Board of AppealsHaberman v. Zoning Board of Appeals
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that the branch of the motion which is for leave to appeal to the Court of Appeals is denied; and it is further,
Ordered that the branch of the motion which is for leave to reargue is granted, and upon reargument, the decision and order of this Court dated March 28, 2006 (27 AD3d 739), is recalled and vacated, and the following decision and order is substituted therefor:
In a hybrid proceeding pursuant to
Ordered that the order is reversed insofar as cross-appealed from, on the law, without costs or disbursements, the petition is denied, the proceeding is dismissed on the merits, the complaint except the fourth cause of action insofar as asserted against the City of Long Beach is dismissed, the determination of the Zoning Board of Appeals of the City of Long Beach is confirmed, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the petitioners are not entitled to the building permit issued on August 12, 2003; and it is further,
Ordered that the appeal is dismissed as academic, without costs or disbursements, in light of our determination on the cross appeals.
Because the dispositive facts were undisputed, and the arguments of the parties were fully set forth in the record before the court, the Supreme Court properly reached the merits of the combined petition and complaint without having provided the movants the opportunity of serving an answer pursuant to
However, the court erred in granting the combined petition and complaint to the extent of annulling the determination of the Zoning Board of Appeals of the City of Long Beach (hereinafter the Zoning Board). “Judicial review of the determination of a local zoning board is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of
“The purpose for ‘imposing a time limitation in the grant of a special permit or variance, it would seem, is to insure that in the event conditions have changed at the expiration of the period prescribed, the board will have the opportunity to reappraise the proposal by the applicant in the light of the then existing facts and circumstances if the latter still desires to proceed‘” (Gina Petroleum v Zoning Bd. of Appeals of Town of Wappinger, 127 AD2d 560, 562 [1987], quoting Matter of Dil-Hill Realty Corp. v Schultz, 53 AD2d 263, 267 [1976]). Here, in order to effectively extend the time limits set forth in the variance, the stipulation between the City of Long Beach and the petitioners had to be ratified by the Zoning Board (see Matter of Buckley v Town of Wappinger, 12 AD3d 597 [2004]; Town of Smithtown v Haynes, 278 AD2d 312 [2000]; Carbone v Town of Bedford, 144 AD2d 420 [1988]). As this was never done, the variance terminated when the petitioners failed to request the building permit within the permitted five-year period from the issuance of the variance. Accordingly, the Zoning Board properly revoked the building permit.
The parties’ remaining contentions are academic in light of our determination.
Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of a judgment declaring that the petitioners are not entitled to the building permit issued on August 12, 2003 (see Lanza v Wagner, 11 NY2d 317 [1962], cert denied 371 US 901 [1962]).
Adams, J.P., Ritter, Santucci and Lunn, JJ., concur.