Traikoff v. Heerema

Appellate Division of the Supreme Court of New York

Traikoff v. Heerema

30 A.D.2d 271, 291 N.Y.S.2d 695, 1968 N.Y. App. Div. LEXIS 3556

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 27, 1968

StatusPublished

This text of 30 A.D.2d 271 (Traikoff v. Heerema) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Traikoff v. Heerema, 30 A.D.2d 271, 291 N.Y.S.2d 695, 1968 N.Y. App. Div. LEXIS 3556 (N.Y. Ct. App. 1968).

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Opinions

Witmer, J.

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 respond[272]*272ents to begin to exercise it within one year from its effective date, as required by the ordinance (§ 55-27, subd. 0, 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 [273]*273that 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.

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Witmer, J.

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 respond[272]*272ents to begin to exercise it within one year from its effective date, as required by the ordinance (§ 55-27, subd. 0, 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 [273]*273that 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.

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30 A.D.2d 271, 291 N.Y.S.2d 695, 1968 N.Y. App. Div. LEXIS 3556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/traikoff-v-heerema-nyappdiv-1968.

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