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Aliano v. Oliva

April 20, 2010

IN THE MATTER OF NICHOLAS ALIANO, APPELLANT,
v.
RUTH D. OLIVA, ETC., ET AL., RESPONDENTS.



In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Director of Code Enforcement of the Town of Southold dated January 6, 2006, confirming a stop work order issued in connection with construction on the petitioner's property, and a determination of Zoning Board of Appeals of the Town of Southold dated August 31, 2006, denying the petitioner's application for an area variance, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Whelan, J.), entered February 10, 2009, which, upon an order of the same court dated June 10, 2007, granting those branches of the respondents' motion which were pursuant to CPLR 3211(a) and 7804(f) to dismiss, for failure to state a cause of action and because the petitioner failed to exhaust available administrative remedies, those branches of the amended petition which were to annul the determination dated January 6, 2006, to annul the determination dated August 31, 2006, on the grounds that it deprived the petitioner of vested rights, deprived him of property in the absence of due process, and constituted an unconstitutional taking of private property for a public purpose without just compensation, to compel the reinstatement of a building permit, and to enjoin the respondents from interfering with the construction work and, in effect, denying that branch of the petition which was to annul the determination dated August 31, 2006, on the ground that it was arbitrary and capricious, and upon an order of the same court dated December 16, 2008, denying those branches of the petition alleging violations of Town Law § 267 and the Open Meetings Law (Public Officers Law art 7), is in favor of the respondents and against him dismissing the proceeding.

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

This opinion is uncorrected and subject to revision before publication in the Official Reports.

A. GAIL PRUDENTI, P.J., WILLIAM F. MASTRO, ANITA R. FLORIO LEONARD B. AUSTIN, JJ.

(Index No. 23694/06)

DECISION & ORDER

ORDERED that the judgment is affirmed, with costs.

On November 4, 2005, the petitioner obtained a building permit from the Town of Southold to construct a one-story house with a 42-foot setback on a bluff overlooking the Long Island Sound (hereinafter the permit). The Town's Director of Code Enforcement issued an oral stop work order on January 5, 2006, and confirmed that determination in writing on January 6, 2006, after finding that the permit was mistakenly issued in violation of the local zoning ordinance, which requires a 100-foot setback from the edge of the bluff.

The petitioner applied to the Zoning Board of Appeals of the Town of Southold (hereinafter the ZBA) in February 2006 for an area variance permitting him to resume construction with a reduced setback. After a series of hearings which commenced in March 2006, and upon the ZBA's receipt of additional written submissions, the ZBA denied the application for the area variance in a determination dated August 31, 2006.

The petitioner commenced this CPLR article 78 proceeding against the ZBA, its members, and the Town (hereinafter collectively the respondents) on September 5, 2006. In an amended petition, the petitioner sought, inter alia, to annul the determination dated January 6, 2006, confirming the stop work order, to compel the ZBA to grant the application for an area variance, to annul the ZBA's determination denying the area variance on the grounds that the determination was arbitrary and capricious, that the ZBA and the Town violated the procedural requirements of Town Law § 267 and the Open Meetings Law (Public Officers Law art 7) in denying the variance application, and that the ZBA and other Town officers officially adopted and promulgated a policy effecting the deprivation of his constitutional rights.

The respondents moved to dismiss the amended petition on the grounds, inter alia, that the petitioner failed to exhaust his administrative remedies and that the amended petition failed to state a cause of action. In an order dated June 10, 2007, the Supreme Court granted those branches of the respondents' motion which were pursuant to CPLR 3211(a) and 7804(f) to dismiss, for failure to state a cause of action and because the petitioner failed to exhaust available administrative remedies, those branches of the amended petition which were to annul the determination dated January 6, 2006, to annul the determination dated August 31, 2006, on the grounds that it deprived the petitioner of vested rights, deprived him of property in the absence of due process, and constituted an unconstitutional taking of private property for a public purpose without just compensation, to compel the reinstatement of a building permit, and to enjoin the respondents from interfering with the construction work. The Supreme Court, in effect, denied that branch of the amended petition which was to annul the determination dated August 31, 2006, on the ground that it was arbitrary and capricious. The Supreme Court denied those branches of the respondents' motion which were to dismiss those branches of the amended petition alleging violations of Town Law § 267 and the Open Meetings Law.

After the respondents answered the remaining branches of the amended petition, the Supreme Court, in an order dated December 16, 2008, denied those branches of the amended petition which alleged violations of Town Law § 267 and the Open Meetings Law.

On February 10, 2009, the Supreme Court entered a judgment which, upon the orders dated June 10, 2007, and December 16, 2008, was in favor of the respondents and against the petitioner dismissing the proceeding. We affirm the judgment.

"It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law" (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57; see Matter of Goldberg v Incorporated Vil. of Roslyn Estates, 61 AD3d 756; Matter of Lucas v Village of Mamaroneck, 57 AD3d 786). In the case at bar, the petitioner was required to appeal the issuance of the stop work order to the ZBA within 60 days after the filing of the stop work order on January 6, 2006 (see Town Law § 267-a[4], [5][b]; Code of Town of Southold § 280-146.A; § 280-153). However, although the petitioner applied for a variance in February 2006 (see Code of Town of Southold § 280-146.B), the record is devoid of any evidence that he appealed the stop work order at any time after it was issued. Consequently, the Supreme Court properly determined that the petitioner failed to exhaust his administrative remedies with respect to his challenge to the stop work order, which extinguished his right to judicial review of that determination (see CPLR 7801; see Matter of Goldberg v Incorporated Vil. of Roslyn Estates, 61 AD3d 756; Matter of Lucas v Village of Mamaroneck, 57 AD3d 786). Accordingly, the Supreme Court correctly granted that branch of the respondents' motion which was to dismiss, for failure to exhaust administrative remedies, that branch of the petition as sought to annul the stop work order.

The Supreme Court properly granted those branches of the respondents' motion which were to dismiss those branches of the amended petition alleging a deprivation of vested and constitutional rights, and seeking related injunctive relief, since the allegations contained in those branches of the amended petition, even if true, do not state a cause of action (see generally ...


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