Opinion
Index No. 134580-2022
07-14-2023
In the Matter of the Application of Anthony T. Castronova, Petitioner, v. Town of Canadice Zoning Board of Appeals, Stephen Smith in his official capacity as Code Enforcement Officer for the Town of Canadice, Richard Joki in his official capacity as Deputy Code Enforcement Officer for the Town of Canadice, Kristy Wright, Kris Singer, Respondents.
Donald J. Cheney, Esq. of Cheney Law Firm, PLLC for Petitioner Sheila M. Chalifoux, Esq. of Chalifoux Law, PC for Respondents Canadice Town Zoning Board of Appeals, Stephen Smith and Richard Joki Samantha R. Rubino of Knauf Shaw LLP for Respondents Kristy Wright and Kris Singer
Unpublished Opinion
Donald J. Cheney, Esq. of Cheney Law Firm, PLLC for Petitioner
Sheila M. Chalifoux, Esq. of Chalifoux Law, PC for Respondents Canadice Town Zoning Board of Appeals, Stephen Smith and Richard Joki
Samantha R. Rubino of Knauf Shaw LLP for Respondents Kristy Wright and Kris Singer
Hon. Craig J. Doran, Justice of the Supreme Court.
This CPLR Article 78 proceeding was commenced by the filing of a Notice of Petition and Verified Petition ("Petition") on November 14, 2022. The Petition challenges the October 12, 2022 determination of the Town of Canadice Zoning Board of Appeals ("ZBA") which found that the Petitioner's pole barn structure violated the Town of Canadice Zoning Code and revoked the building permit previously issued to Petitioner Anthony T. Castronova ("Petitioner"). Respondents ZBA, Code Enforcement Officer Stephen Smith ("CEO"), and Deputy Code Enforcement Officer Richard Joki ("Deputy CEO") filed their Verified Answer with Objections in Point of Law and Certified Transcript of Proceedings and Appendix ("the Record") on February 1, 2023. Respondents Kristy Wright ("Wright") and Kris Singer filed a Verified Answer with Objections in Point of Law on February 1, 2023. Petitioner filed a Reply affirmation in further support of the Petition on May 17, 2023.
On May 18, 2023, the parties appeared before the Court by their respective counsel for oral argument on the Petition. Thereafter, on May 18, 2023, counsel for the Town Respondents filed correspondence providing additional legal authority for Respondents' position.
I. SUMMARY OF RECORD AND PROCEDURAL HISTORY
The relevant facts, as derived from the Certified Record and Appendix, are largely undisputed. Petitioner applied for a building permit in late 2021 to construct a pole barn on his property, located in the Honeoye Lake Shore Zoning District. The permit application described the project as "22' x 24' x 10' post framed garage 528 sq. ft." and, on its face, did not indicate that the structure had two floors or include the square footage of the planned second floor. During the proceedings before the ZBA, Petitioner maintained that he submitted drawings of the structure with the application showing the second floor and gambrel roof, but this assertion was disputed by the CEO, who stated that the drawings were not submitted until after the permit was issued. In any event, on November 9, 2021, the CEO issued a building permit identifying the structure as a "Pole Barn 22 x 24" and noting a square footage of 528 square feet.
The excavation for Petitioner's pole barn began at the end of December 2021. Petitioner's neighbors, Respondent Kristy Wright and Respondent Kris Singer, observed the beginning stages of the construction but stated that they believed Petitioner was constructing a one-story garage. On February 3, 2022, the trusses for the roof and second floor of the barn were constructed and, according to Wright and Singer, this is when they discovered that the structure was, in fact, a two-story pole barn.
Wright, with the assistance of Singer, filed a Complaint of Violation with the CEO, dated February 6, 2022. The complaint notes several asserted violations of the Town of Canadice Zoning Code ("Zoning Code"), including height requirements and an obstruction of the lake view for neighbors. Wright stated that she dropped off the complaint at the CEO's office on Saturday, February 5, 2022, but no one was working at the CEO's office until Tuesday, February 8, 2022. Between February 3, 2022 and February 8, 2022, construction continued and Petitioner's pole barn was closed in and roofed.
The pole barn is located across the street from Wright's home, with the pole barn, Petitioner's home, and trees standing between Wright's home and Honeoye Lake. There is no dispute that the second floor and roof of the pole barn now obstruct the views from Wright's second floor windows looking towards the trees and lake.
The CEO's determination on the complaint, dated February 8, 2022, found "no violations" and that the building permit was properly issued. Wright then filed an appeal letter with the ZBA and CEO dated February 25, 2022. Five months later, on July 26, 2022, the Town Attorney prompted the CEO to file his determination on Wright's complaint with the Town Clerk in order to comply with the Town Code. On July 30, 2022, Wright filed another appeal letter with the ZBA that was nearly identical to her February 25, 2022 appeal.
The ZBA initially discussed Wright's complaint at its March 9, 2022 meeting. Petitioner was not given notice of this meeting, nor was he informed that a complaint had been filed with the CEO. The ZBA discussed the relevant code provisions and determined that the structure was in violation of the Code. The ZBA directed the CEO to issue an Order to Remedy directing Petitioner to remove the gambrel roof and replace it with a lower-pitched roof. On March 17, 2022, the CEO issued the Order to Remedy as well as a Stop Work Order.
Petitioner, by letter dated April 12, 2022, appealed the ZBA's March 9, 2022 determination, asserting, among other things, that Petitioner was denied notice and the opportunity to be heard prior to the determination. Seemingly acknowledging that its March 9 meeting was procedurally flawed, the ZBA scheduled another meeting to discuss Wright's appeal along with Petitioner's appeal. ZBA meetings were held on August 10, 2022, September 14, 2022, and October 12, 2022. Petitioner was given notice of these meetings and appeared at each meeting with his counsel. At the October 12, 2022 meeting, the ZBA granted Respondent Wright's appeal and determined that Petitioner's building permit application misstated that the structure was 528 square feet when it was actually 967 square feet, that all structures exceeding 800 square feet must undergo site plan review by the Planning Board, and the building permit was therefore invalid and must be revoked. The ZBA also granted Petitioner's appeal and revoked the Order to Remedy that resulted from the procedurally flawed March 9, 2022 meeting.
Petitioner then timely commenced this Article 78 proceeding.
II. DISCUSSION
The Petition seeks annulment of the ZBA's October 12, 2022 determination on the following grounds: (1) the ZBA's determination was arbitrary and capricious and against the weight of the evidence because the appeal was untimely under Town Law 267-a(5)(B); (2) the ZBA's determination was arbitrary and capricious and against the weight of the evidence because evidence in the record supports denial of Wright's appeal of the CEO's determination; (3) the ZBA's determination to revoke Petitioner's building permit is arbitrary, capricious and without evidentiary support because the building permit was not illegal or invalid; (4) the March 9, 2022 hearing held by the ZBA was illegal because Petitioner was not given prior notice or the opportunity to be heard at the hearing and because Respondent Singer was permitted to actively prosecute an appeal for Respondent Wright at the meeting; and (5) Petitioner has a vested right to complete the pole barn because he relied upon a legally-issued building permit and the structure is 95% complete.
In response to the Petition, Respondents contend that Wright's appeal to the ZBA was timely; the ZBA's October 12, 2022 determination was rational and not arbitrary or capricious because the building permit was issued in violation of the Zoning Code; the procedural errors that occurred at the March 9, 2022 ZBA meeting do not establish a basis to annul the October 12, 2022 determination; and Petitioner acquired no vested right in an improperly issued building permit.
A. Timeliness of Wright's Appeal to the ZBA
Petitioner asserts that the ZBA acted outside of its jurisdiction because Wright's appeal to the ZBA was not timely filed. Specifically, Petitioner argues that Town Law § 267-a (5) (b) required Wright's appeal to be filed within 60 days of the issuance of the building permit to Petitioner on November 9, 2021, and Wright's February 6, 2022 complaint to the CEO was therefore untimely . Respondents contend that the appeal was timely and suggest three alternative dates on which the clock began running for the 60-day deadline: at the end of December 2021, when construction began on the pole barn; on February 8, 2022, when the CEO issued a determination on Wright's complaint; or on July 26, 2022, when the CEO's determination on the complaint was filed with the Town Clerk.
Petitioner appears to define the "appeal" at issue as Wright's February 6, 2022 complaint to the CEO. Wright's actual appeal to the ZBA was not submitted until February 25, 2022.
Town Law § 267-a (5) provides that "[a]n appeal [to the Zoning Board of Appeals] shall be taken within sixty days after the filing of any order, requirement, decision, interpretation or determination of the administrative official [charged with the enforcement of the zoning local law]" (Town Law § 267-a [5] [b]). The Zoning Code further provides that the ZBA has the authority to "hear and decide appeals where it is alleged that error or misinterpretation in any order, requirement, decision, grant or refusal made by the Code Enforcement Officer... in the carrying out or enforcement of the provisions of this chapter" and that "[s]uch appeal shall be filed within 60 days after the filing in the Town Clerk's office of any order, requirement, decision, interpretation or determination of the Code Enforcement Officer" (Zoning Code § 120-158 [B] [2] [a], [b]).
The Court finds that Wright's appeal was timely and the ZBA had jurisdiction to review the appeal. As an initial matter, the Court is not persuaded by Petitioner's argument that the issuance of the building permit began the 60-day limitations period set forth in Town Law § 267-a (5) (b) and Zoning Code § 120-158 (B) (2) (b). While Petitioner is correct that the issuance of a building permit ordinarily starts the 60-day clock, the Court of Appeals has recognized that this rule is only reasonable "[a]s applied to an applicant denied a [building] permit" (see Pansa v Damiano, 14 N.Y.2d 356, 359-360 [1964] [emphasis added]). Where, however, an individual is challenging a building permit issued to another person, the 60-day period in which to appeal to the ZBA begins to run when the individual's objections are formally rejected by the official charged with enforcing the zoning code (see Pansa, 14 N.Y.2d at 359-360 [limitations period for appeal to ZBA begins to run when neighbor's initial objection to proposed construction has been formally rejected]; Farina v Zoning Bd. of Appeals of City of New Rochelle, 294 A.D.2d 499, 500-501 [2d Dept 2002] ["where a party seeks revocation of a building permit issued to another, the prescriptive period should be computed from the date such party received notice that his objections to the permit had been overruled").
Here, according to Petitioner's statements in the Record, the excavation for the pole barn began at the end of December, 2021. Wright was alerted to the height of the structure's roof on or about February 3, 2023, when the trusses were built, and believed that the structure was in violation of the Zoning Code. In accordance with Zoning Code § 120-155, which permits "any person" to file a written complaint with the CEO "[w]henever a violation of this chapter occurs," Wright submitted a "Complaint of Violation" to the CEO on or about February 6, 2022. Zoning Code § 120-155 does not specify a time period within which a complaint of a Zoning Code violation must be filed with the CEO, but it is undisputed that Wright filed her complaint within days of observing the elements of the structure she believed violated the Code - the trusses for the second floor and gambrel roof.
On February 8, 2022, the CEO issued a determination that there were "no violations" and that the "permit [was] issued correctly." It was from this determination that Wright appealed to the ZBA by letter dated February 25, 2022. Consequently, the operative "determination" that began the 60-day clock was the CEO's February 8, 2022 determination, and Wright's appeal to the ZBA, filed 17 days later, was timely (see Town Law § 267-a [5] [b]; Zoning Code § 120-158 [B] [2] [a], [b]; see also Pansa, 14 N.Y.2d at 359-360; Farina, 294 A.D.2d at 500-501).
The Court notes that Respondents' alternative contention, that the clock began to run when the CEO's February 8, 2022 determination was filed with the Town Clerk on July 26, 2022, is not palatable given the facts of this case. The CEO's determination was not filed with the Town Clerk within five business days as required by Town Law § 267-a (5) (a); in fact, the filing was inexplicably delayed for over five months. Where, as here, Respondent Wright and the Town Respondents are aligned in their assertion that Wright's appeal was timely and the ZBA had jurisdiction over the appeal, Respondents cannot use the CEO's five-month delay in filing the determination as a mechanism to, in effect, extend the limitations period to their advantage.
B. Review of the ZBA's Determination
Petitioner contends that the ZBA's determination to grant Wright's appeal and revoke the building permit was arbitrary and capricious because the evidence before the ZBA did not support its determination; the ZBA considered certain violations of the Zoning Code that were not raised by Wright in her appeal; and Petitioner acquired vested rights because he substantially completed construction of the pole barn in reliance on a valid building permit.
Respondents argue that the Record supports the ZBA's finding that the building permit was improperly issued without the required site plan review by the Town Planning Board. Respondents further assert that Petitioner acquired no vested rights because the building permit was issued in error.
"Judicial review of an administrative determination is limited to whether the administrative action is arbitrary and capricious or lacks a rational basis" (Concetta T. Cerame Irrevocable Family Tr. v Town of Perinton Zoning Bd. of Appeals, 6 A.D.3d 1091, 1092 [4th Dept 2004], citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, 34 N.Y.2d 222, 231 [1974]; see also Matter of Devogelaere v Webster Zoning Bd. of Appeals, 87 A.D.3d 1407, 1407 [4th Dept 2011] ["judicial review is generally limited to ascertaining whether [the zoning board's] action was illegal, arbitrary and capricious, or an abuse of discretion"]). "Administrative agencies such as zoning boards are vested with great discretion" and "their determinations are entitled to great deference and will be sustained even if the reviewing court might have decided the matter differently" (id. [internal quotations and citations omitted]; see also Devogelaere, 87 A.D.3d at 1407). "A reviewing court may not substitute its own judgment for that of the agency" (Cerame Irrevocable Family Tr., 6 A.D.3d at 1092).
Wright's February 25, 2022 appeal to the ZBA raises four issues in support of her position that Petitioner's pole barn violates the Zoning Code:
1) the structure exceeds 800 square feet, and therefore site plan review by the Planning Board was required by Zoning Code §§ 120-21 (C) (6) and 120-21(G) (1) & (2);
2) the structure does not meet requirements for set back from private roads under Zoning Code § 120-21 E (5) (a) (2);
3) the structure exceeds maximum building height under Zoning Code § 120-21 (E) (6), which height, Wright argues, should be measured from the natural ground and not from the backfilled height after leveling the site for construction; and
4) the structure causes the maximum lot coverage to exceed 30% in violation of Zoning Code § 120-21 (E) (7).
The ZBA held a meeting on March 9, 2022 at which Wright's appeal was discussed, along with the relevant provisions of the Zoning Code. Petitioner was not given notice of this meeting and did not attend. The ZBA determined that Petitioner's structure was in violation of the Code and directed the CEO to issue an Order to Remedy requiring Petitioner to replace the gambrel roof with a lower-pitched roof. On March 17, 2022, the CEO issued an Order to Remedy and also issued a Stop Work Order, although by that time construction on the pole barn was nearly complete.
By letter from Petitioner's counsel to the ZBA and CEO dated April 12, 2022, Petitioner appealed the Order to Remedy and Stop Work Order, arguing that the ZBA's failure to provide notice to Petitioner of the March 9, 2022 meeting nullified its determination, that Wright's complaint to the CEO was untimely and deprived the ZBA of jurisdiction, and that the structure was built in accordance with a legally issued building permit.
Wright then submitted another appeal letter to the ZBA, dated July 30, 2022, after the CEO's February 8, 2022 determination was belatedly filed with the Town Clerk. Wright's second appeal raised the same issues as her original appeal and additionally requested that the building permit be revoked pursuant to Canadice Town Code § 55-12.
The ZBA held public meetings to review Wright's appeal and Petitioner's appeal on August 10, 2022, September 14, 2022 and October 12, 2022. Notice of these meetings was provided to all interested parties. Petitioner and his attorney, along with Respondent Wright, appeared at all three meetings and were provided the opportunity to speak and submit documentation to the ZBA.
At the October 12, 2022 meeting, the ZBA issued its determination granting Wright's appeal, reversing the CEO's February 8, 2022 determination, and revoking Petitioner's building permit. The Board discussed each alleged Zoning Code violation asserted in Wright's appeal, but its ultimate determination was primarily based on findings that the building permit and the structure as built violated Zoning Code §§ 120-21 (C) (6) and 120-21(G). Specifically, the ZBA concluded that Petitioner's building permit application misstated that the planned structure was 528 square feet, but the structure as built and as depicted on the drawings and engineered plans was actually 967 square feet. Because the structure exceeded 800 square feet, Sections 120-21 (C) (6) and 120-21(G) of the Zoning Code required site plan review by the Planning Board prior to the issuance of a building permit. The ZBA found that the building permit was therefore improperly issued and revoked the permit.
The Court finds that the ZBA's determination is supported by a rational basis in the Record and is not arbitrary or capricious. Zoning Code § 120-21 provides the permitted uses of structures located in the Honeoye Lake Shore District where Petitioner's and Wright's properties are located. Section 120-21 (C) (6) provides that permitted accessory uses include a "[n]oncommercial storage facility... or other structure for the private use of the landowner," and mandates that "[s]ite plan review shall be required for any structure larger than 800 square feet gross floor area." Section 120-21 (G), entitled "Site plan review" further provides that "[s]ite plan review is required where all new structures... are more than 800 square feet" (Zoning Code § 120-21 [G] [1]). Section 120-21 (G) (2) emphasizes that "[t]he design and placement of proposed structures shall minimize the impacts on views from neighboring properties" and "[i]n this district, careful attention shall be made to minimizing the impact on lake views from adjacent buildings and properties..."
The Record establishes that Petitioner's pole barn, as built, has a gross floor area of 967 square feet. Petitioner's building permit application misstated that the planned structure was 528 square feet, and the building permit issued by the CEO only approved a 528 square-foot structure. Had Petitioner applied for a building permit for a 967 square-foot pole barn, site plan review by the Planning Board would have been required by Zoning Code §§ 120-21 (C) (6) and (G) before the building permit was issued (see Zoning Code § 120-113 [A]). The required site plan review was not conducted for Petitioner's structure, and the ZBA reasonably concluded that the structure therefore violates the Zoning Code. Indeed, the primary purpose of site plan review is to assess the impact of the structure on views from neighboring properties, and, in this case, site plan review would have encompassed the very issue forming the basis of Wright's objection to the structure - that her views are now obstructed by the pole barn.
Petitioner asserts that lack of site plan review was not properly considered by the ZBA because Wright did not specifically raise this issue in her initial complaint to the CEO. The Court disagrees. Although Wright's complaint did not cite the Zoning Code section dealing with site plan review, she complained that the pole barn was illegally obstructing her lake view. The primary purpose of site plan review in the Honeoye Lakeshore Zoning District, as stated by the Code, is to protect the views from neighboring properties. As such, Wright sufficiently raised this issue in her complaint and the ZBA properly considered it on appeal. Notably, Wright's appeal letter did clearly assert violations of the site plan review sections of the Zoning Code.
The Court also finds that the ZBA's revocation of Wright's building permit was lawful. Under Zoning Code 120-158 (B) (2) (c), the ZBA "may reverse or affirm, wholly or partly, or may modify the... determination appealed from and shall make such order, requirement, decision or determination as in its opinion ought to be made and to that end shall have all the powers of the officer from whom the appeal is taken." The CEO had the authority to revoke Petitioner's building permit under Town Code § 55-12, which permits revocation where the permit application "is in any material respect false or misleading or that work is being done upon the premises differing materially from that called for in the application filed with him." Here, the square footage indicated on the permit application was incorrect and the pole barn built on Petitioner's property differs materially from the square footage identified on the building permit application (and on the building permit itself). The ZBA, "hav[ing] all the powers" of the CEO in reaching its determination, was therefore authorized to revoke the building permit (see Zoning Code § 120-158 [B] [2] [c]).
The Court notes that, based on the Record, it does not appear that Petitioner intentionally misrepresented the square footage on the permit application. However, the fact remains that the square footage indicated on the application was not consistent with the actual size of the planned structure, and that the structure as built was not compliant with the building permit.
Contrary to Petitioner's further contention, the ZBA's determination subject to annulment due to any vested right acquired by Petitioner." 'In New York, a vested right can be acquired when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development'" (Matter of Westbury Laundromat, Inc. v Mammina, 62 A.D.3d 888, 889-890 [2d Dept 2009], quoting Town of Orangetown v Magee, 88 N.Y.2d 41, 47 [1996]). Here, Petitioner did not demonstrate "a commitment to the purpose for which the permit was granted" because he built a structure that greatly varied from the square footage indicated on the building permit (see id.).
Further, [a]n applicant for a building permit obtains no vested rights through the issuance of an invalid permit" (Matter of Rejman v Welch, 112 A.D.2d 795, 795 [4th Dept 1985], app dismissed 6 N.Y.2d 916 [1985]), and here, it appears that the permit was erroneously issued without site plan review based on the CEO's belief that Petitioner intended to build a 528 square-foot structure when in fact the planned structure was much larger. The Court acknowledges the difficulty and expense this mistake may cause the Petitioner, but it is well established law in this state that" '[t]he mistaken or erroneous issuance of a permit does not estop a municipality from correcting errors, even where there are harsh results'" (Westbury Laundromat, 62 A.D.3d at 890, quoting Matter of Parkview Assoc. v City of New York, 71 N.Y.2d 274, 282 [1988]).
Petitioner also contends that the ZBA's ultimate determination was unlawful because Petitioner was not given notice of or the opportunity to be heard at the March 9, 2022 meeting. Petitioner further objects to Respondent Singer's participation in the March 9, 2022 discussion because she is a member of the ZBA.
The Court is not persuaded by Petitioner's argument that the ZBA's ultimate determination must be annulled due to procedural irregularities at the March 9, 2022 meeting. While Petitioner is correct that he was not provided notice of the March 9 meeting, the Record establishes that the ZBA later granted Petitioner's appeal based upon those issues and revoked the Order to Remedy that resulted from the March 9, 2022 meeting . There is no indication in the Record that Petitioner took any actions or incurred expense as a result of the Order to Remedy, and Petitioner has not otherwise established that he suffered any prejudice as a result of the March 9, 2022 meeting. Indeed, Petitioner was provided notice of and attended, with his counsel, all three of the ZBA meetings that led to the determination under review in this proceeding.
To the extent Petitioner argues that the CEO's March 17, 2022 Stop Work Order caused prejudice, that Order was not issued as a result of any directive of the ZBA at the March 9, 2022 meeting. Rather, the CEO was independently authorized to issue the Stop Work Order pursuant to his powers under Town Code § 120-151 (D) (2).
Petitioner's procedural objections to Respondent Singer's participation in the March 9, 2022 meeting are also misplaced inasmuch as Singer was not a ZBA member at the time of the March 9, 2022 meeting, and, after she became a member, she recused herself from voting on the determination based on her status as a neighbor of Petitioner's.
In sum, the Court finds no basis to disturb the ZBA's determination. Based on the Court's review of the entire Record, and the "great deference" to be accorded to zoning board determinations (Cerame Irrevocable Family Tr., 6 A.D.3d at 1092), the Court finds that the ZBA's determination is supported by a rational basis in the record and must be confirmed.
Accordingly, it is hereby
ORDERED that the ZBA's October 12, 2022 determination is hereby confirmed; and it is further
ORDERED that the Verified Petition is dismissed in its entirety.
This shall constitute the Decision and Order of the Court.