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ZBA's Abandonment of Its Prior Determination Invalid
Matter of Upper Delaware Hospitality Corp. v. Town of Tusten Zoning Board of Appeals (ZBA), 2024 WL 117275, AppDiv, Third Dept. (Opinion by Aarons, J.)
In landowner's article 78 proceeding challenging the ZBA's abandonment of its decision to dismiss neighbors' appeal challenging the issuance of a certificate of occupancy, neighbors appealed from Supreme Court's grant of the petition and declaration that the abandonment was invalid. The Appellate Division affirmed, holding that because the abandonment was not unanimous, it was invalid under the town code.
In 2020, the town granted landowner a special use permit to convert its property into an eating and drinking establishment. Landowner obtained a building permit, and then, in October 2021, a certificate of occupancy. In January 2022, neighbors, lessees of property across the street, submitted an appeal to the ZBA challenging issuance of the certificate of occupancy. By a vote of 4-1, at its February 2022 meeting, the ZBA dismissed the appeal as untimely. Later, at that same meeting, the ZBA also by a 4 to 1 vote, passed a resolution abandoning dismissal of the appeal and scheduling a rehearing. Before any rehearing, landowner brought an article 78 proceeding seeking to annul the determination to rehear. Supreme Court granted the petition, and neighbors appealed.
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