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Article 78 Proceeding Not Ripe Even Though ZBA Had Not Made a Decision Within 62-Day Time Limit
Matter of 999 Hempstead Turnpike, LLC v. Board of Appeals, 2022 WL 2962605, AppDiv, Second Dept. (memorandum opinion)
In landowner's article 78 proceeding challenging denial of a special exception permit and area variance, the town appealed from Supreme Court's grant of the permit. The Appellate Division reversed, holding that Supreme Court lacked subject matter jurisdiction because the Board of Appeals (ZBA) had not yet made a final determination.
In 2018, landowner sought an area variance and special exception permit in connection with proposed construction of a self-storage facility. The ZBA held a public hearing. Although Town Law section 267-a(8) requires a ZBA to render a decision within 62 days, the ZBA did not do so. Landowner brought this article 78 proceeding, relying on Town Law section 267-a(13)(b), which provides that if the ZBA, in exercising its appellate jurisdiction, fails to render a decision within 62 days, the application is deemed denied. The ZBA failed to answer the petition, and Supreme Court granted landowner's petition and directed the ZBA to issue the special exception permit and area variance. The ZBA moved to vacate the order and the court denied the motion. The ZBA appealed.
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