Although timely under the applicable statute of limitations, the Third Department has concluded that a neighbor's challenge to the issuance of a certificate of occupancy for a new house constructed on abutting property is barred by the doctrine of laches. (Clarke v. Town of Sand Lake Zoning Board of Appeals, 2008 N.Y. Slip. Op. 05420, June 12, 2008).
The Town of Sandlake zoning law requires new construction to be set back at least 100 feet from the shoreline of the lake. This zoning law also gives the Planning Board the authority to waive these restrictions under appropriate circumstances for properties located in the scenic preservation area.
On June 8, 2006, a property owner obtained permission from the Planning Board to construct a modular house 28 feet from the shoreline on one side, and 35 feet from the shoreline on the other side. This permission was obtained in return for the property owner's removal of 5 existing, dilapidated trailers from the property, some of which were as close as five feet to the shoreline and/or had inadequate septic systems.
On June 9, 2006, the Town building inspector issued a building permit authorizing the construction of the house in the location approved by the Planning Board. Excavation began on July 14, 2006, and a certificate of occupancy was issued for the house on October 20, 2006.
In late October, shortly after the c.o. was issued, an abutting property owner appealed the issuance of the building permit and the c.o. to the ZBA. The ZBA concluded that the challenge to the building permit was not timely because it had not been filed within the 60-day statute of limitations established by Town Law 267-a(5)(b). Although the ZBA determined that the challenge to the c.o. was timely under this 60-day statute of limitations, the ZBA concluded that the c.o. was properly issued because the house was constructed in compliance with the Town zoning law and the relevant permits.
The Third Department agreed that the abutting neighbor's challenge to the building permit was barred by the 60-day statute of limitations. Although there was no evidence that the neighbor had notice that the building permit was issued on June 9, the Third Department concluded that the neighbor was aware that construction was taking place on the property no later that the commencement of excavation on July 14. Accordingly, the Third Department concluded that the neighbor's appeal to the ZBA more than 60 days after the commencement of excavation was untimely under the relevant statute of limitations.
While the neighbor's challenge to the c.o. was timely under the relevant 60-day statute of limitations, the Third Department concluded that this challenge was nonetheless barred by the doctrine of laches. Specifically, the Third Department noted that the neighbor had been advised of the property owner's plans in May, that the neighbor had observed the commencement of excavation in July, and that the neighbor had observed the construction of the new house through October.
Accordingly, concluding that the neighbor had delayed in acting to protect her interests, and that she had failed to offer any explanation for her failure to act sooner, the Third Department held that the neighbor's challenge to the c.o. in late October - while timely under the relevant statute of limitations - was barred by the doctrine of laches.
