Cahill v Town of Milo Zoning Bd. of Appeals (2005 NY Slip Op 50550(U))

Cahill v Town of Milo Zoning Bd. of Appeals

2005 NY Slip Op 50550(U)

Decided on April 15, 2005

Supreme Court, Yates County

Falvey, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

This is an Article 78 petition concerning a zoning issue. The Court takes judicial notice of the prior proceeding in a related matter, involving this petitioner and the Code Enforcement Officer, Index No. 04-314, and the Court's decision therein.

The petitioner applied to the Zoning Board of Appeals ("ZBA") for a variance to allow the building of an open pavilion on a 72 acre land-locked parcel that he owns as joint tenant with his siblings. The Code Enforcement Officer had refused to issue a building permit, concluding that a variance would be necessary due to the fact that the parcel is not on a public road, and the Town Zoning Ordinance requires 150 feet of frontage on a public road, and also that the Town Law section 280-a requirements were not met.

The Town Planning Board on December 14, 2004, first reviewed the application for an area variance and recommended that the variance be denied. The Zoning Board of Appeals held a hearing on December 21, 2004, and after the hearing, voted to deny the variance. Notice of the decision was given to the petitioner in writing by letter dated December 22, 2004. The papers submitted by the parties do not indicate the date the decision of the Zoning Board of Appeals was filed with the Town Clerk. See Town Law § 267-c(1).

The petitioner filed the petition in the instant Article 78 proceeding on January 19, 2005. The Notice of Petition denotes the respondent only as "Town of Milo Zoning Officer" while the verified petition names the respondent as "Town of Milo Zoning Board of Appeals". The Notice of Petition and Petition were served on Jane Lamphier, secretary of the ZBA on February 11, 2005. Clearly, the ZBA is a necessary party, since it is the body that issued the decision denying petitioner's application for a variance. Since the ZBA is named in the caption of the petition, [*2]although not named in the caption of the Notice of Petition, the Court finds that the ZBA was properly named.

However, the Court notes that petitioner failed to name petitioner's joint tenants as respondents. Generally speaking, the owners of a parcel that is the subject of an Article 78 proceeding to review a determination of a Zoning Board of Appeals are necessary parties. CPLR §1001; Manupella v Troy ZBA, 272 AD2d 761; Ferrando v NYC Board of Standards and Appeals, 12 AD3d 287; Karmel v White Plains Common Council, 284 AD2d 464. Here, because the co-owners did not join in the petitioner's application before the ZBA, they should have been named as respondents in the proceeding.

While the ZBA has not asserted this point in its answer, the Court is within its right to make such a determination, and to dismiss the petition, sua sponte. Manupella v Troy ZBA, 272 AD2d 761.

The Court is also concerned with petitioner's compliance with CPLR § 306-b. However, there is no proof in the record of the date of filing of the ZBA's decision with the Town Clerk, therefore, the Court can not rule on that issue.

The petition is dismissed, with prejudice, unless petitioner is able to establish that the date of filing of the decision of the ZBA with the Town Clerk is so recent, that petitioner is able to timely commence a new proceeding, and serve all necessary parties in a timely fashion.