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WILLIAM E. TRAIKOFF ET AL. v. JOHN R. HERREMA (06/27/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT 1968.NY.42324 <http://www.versuslaw.com>; 291 N.Y.S.2d 695; 30 A.D.2d 271 June 27, 1968 WILLIAM E. TRAIKOFF ET AL., APPELLANTS,v.JOHN R. HERREMA, DOING BUSINESS AS I.G.A. FOODLINER, ET AL., RESPONDENTS Appeal from a judgment of the Supreme Court (William G. Easton, J.), entered January 5, 1968, in Monroe County dismissing the complaint. Robinson, Williams, Brown, Robinson & Angeloff (Mitchell T. Williams and Frank A. Aloi of counsel), for appellants. Harold G. Ashworth for respondents. Witmer, J. Del Vecchio and Henry, JJ., concur with Witmer, J.; Goldman, J., dissents and votes to reverse the judgment insofar as it dismissed the amended complaint and plaintiffs' first cause of action, in opinion, in which Bastow, P. J., concurs. Author: Witmer


Appeal from a judgment of the Supreme Court (William G. Easton, J.), entered January 5, 1968, in Monroe County dismissing the complaint.

Witmer, J. Del Vecchio and Henry, JJ., concur with Witmer, J.; Goldman, J., dissents and votes to reverse the judgment insofar as it dismissed the amended complaint and plaintiffs' first cause of action, in opinion, in which Bastow, P. J., concurs.

Author: Witmer

 This is an appeal from a judgment insofar as it dismisses a cause of action of the amended complaint for an injunction restraining the defendants-respondents from exercising a zoning variance granted to them by the Zoning Board of Appeals of the Town of Irondequoit. The record amply supports the findings and judgment of the trial court with respect to the merits of the issuance of the variance. Appellants contend, however, that the variance expired for failure of respondents to begin to exercise it within one year from its effective date, as required by the ordinance (§ 55-27, subd. C, par. [8]). The members of this court are in agreement that the effective date of the variance was not the date of the Zoning Board's decision, and we disagree only as to when it became effective. We hold such date to be the time of filing of the instrument signed by the respondents agreeing to the conditions imposed by the board in its decision granting the variance.

Following a hearing in which appellants participated, the Zoning Board of Appeals rendered its decision, filed January 5, 1966, granting a variance to respondents upon conditions to be set forth in an agreement to be prepared by the Town Attorney and accepted by the respondents. The decision further specified that appeal from it could be entertained within 30 days from the date of the filing of the agreement. The Town Attorney delayed preparing the agreement, and pending its submission, respondents did considerable work on the site, preparing it for construction of the new building and bringing in equipment and materials therefor. The conditions attached to the variance were later drafted by the Town Attorney and incorporated as part of a resolution by the Zoning Board of Appeals as of the date of the hearing, January 3, 1966, and at the foot thereof respondents signed agreement to such conditions. When the agreement was submitted by the Town Attorney to respondents for signature does not appear, nor does it appear when respondents in fact signed the agreement for the Town Attorney. Respondents' acceptance of the resolution-agreement bears date of July 21, 1966, and the instrument was filed in the Town Clerk's office on September 15, 1967.

The board imposed conditions upon issuance of the variance, and charged the Town Attorney with the responsibility for preparing the conditions and securing their acceptance, and presumably for filing the same, making the variance effective. This was a town function, not that of the applicant for the variance; and we find no basis for charging respondents with delay in filing the resolution-agreement.

By the terms of the variance it was not to become effective until the agreement was filed (see Matter of Pansa v. Damiano, 14 N.Y.2d 356); and it seems clear that September 15, 1967 is the official effective date of the issuance of the variance. This practice by the Zoning Board of requiring filed consent to such conditions is not only reasonable, but completely fair to appellants, whose time in which to attack the variance, thus, did not begin to run until September 15, 1967 (Matter of Pansa v. Damiano, supra), at which time appellants were clearly aware that the variance had been granted. For the same reason, the year within which respondents must exercise the variance granted to them began to run on that date; and there is, therefore, no question but that respondents began to exercise the variance within such year. Thus, there is no occasion for seizing upon the fact of late filing of the resolution-agreement as reason to reverse an otherwise proper judgment.

Appellants had two choices of action in 1967 -- either to attack the variance in an article 78 proceeding or to proceed by action to have it declared a nullity, the latter of which they did (see Lesron Junior v. Feinberg, 13 A.D.2d 90; Namro Holding Corp. v. City of New York, 17 A.D.2d 431, 435; Pansa v. Sitrin, 27 A.D.2d 636). They have had their full day in court, and we see no reason for granting another one to them.

The judgment should, therefore, be affirmed, without costs.

Disposition

Judgment insofar as appealed from affirmed, without costs.

Goldman, J. (dissenting).

Appellants' property, which is located in a subdivision zoned residential, is adjacent to the respondent's property, which is zoned commercial and upon which he operates a retail establishment. On January 3, 1966 the Irondequoit Zoning Board of Appeals heard respondent's appeal from a denial of his application for a permit which sought to increase substantially the size of his store by the erection of an addition thereto which would be considerably closer to the side and rear lines of the lot than the required minimum setbacks. The application was granted the same day, subject to an agreement on details as to use and area. The notice of the board's decision was sent to the respondent but not to appellants.

After the board's decision, the Town Attorney prepared the resolution-agreement and it was executed by respondent on July 21, 1966. By the terms of the agreement the application for the variance was "granted subject to the following conditions, acceptance of which shall be made by execution and filing with the Board a written acceptance of the following: -- ". Thus, it was respondent's obligation to execute the agreement and file it with the board. It was not filed, as evidenced by the Town Clerk's stamp, until September 15, 1967, a period of some 14 months after respondent signed it. Appellants contend on this appeal that they are entitled to injunctive relief on two theories: (1) the variance expired before it was exercised; and (2) the actual and planned construction did not comply with off-street parking and lot density requirements of the zoning ordinance. While the court's findings indicate that there were minor violations of the requirements set forth in the second objection, it concluded that the board impliedly authorized a continuation of noncompliance with the off-street parking requirement in granting the setback variance. There is some indication in the record that respondent secured additional property to cure the parking violation and the violations are so minor that we do not consider the second point a sufficient ground for reversal.

The trial court and the respondent assert that the variance herein was granted under section 55-27-B of the Zoning Ordinance. It should be noted, however, that the court stated that "§ 55-27-C(8) must be construed as having special application". It is clear that the court meant subdivision B and not paragraph (8) of subdivision C. To reach this result the trial court relied on the "practical construction" canon and indicated that subdivision B relates to area variance and subdivision C to use variance. To apply such a construction to the ordinance would mean that area variance could only be granted upon appeal, while use variance could be granted by direct application to the board (cf. § 55-27, subds. B and C). Such a result would be patently illogical and would also ignore the clear language of section 55-27 (subd. C, par. [4]), which provides for the board granting variances for lot area, lot width, and rear or side setback requirements. To construe B as limited to area variances is clearly wrong, for that paragraph twice refers to "use". Subdivision B contains both the "practical difficulties" and the ...


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