Bowman v. Squillace , 74 A.D.2d 887 ( 1980 )

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Town of Clarkstown, dated June 19, 1978, which overturned, as erroneous, two violations which had been filed against a gasoline station owned by respondent All Points Texaco (Texaco), petitioner appeals from a judgment of the Supreme Court, Rockland County, dated October 24, 1978, which, in effect, granted Texaco’s motion to dismiss the proceeding on the ground that petitioner lacked legal capacity to institute the proceeding. Judgment reversed, with $50 costs and disbursements, petition reinstated and motion to dismiss denied, with leave to respondents to serve their answers within 10 days after service upon them of a copy of the order to be made hereon, together with notice of entry thereof. In this CPLR article 78 proceeding, the building inspector of the Town of Clarkstown seeks to review a determination of the Zoning Board of Appeals of the Town of Clarkstown which overturned, as erroneous, two violations which he had filed against a gasoline station owned by respondent Texaco. In his petition, the building inspector alleged that he is a "party aggrieved” within the meaning of subdivision 7 of section 267 of the Town Law which authorizes any town official or person aggrieved by a determination of the board of appeals to seek CPLR article 78 review. Texaco moved to dismiss the petition asserting that the proceeding was brought in petitioner’s official capacity as building inspector and that his failure to obtain authorization to sue from the Town Board of the Town of Clarkstown pursuant to section 65 of the Town Law rendered the proceeding a nullity. The motion to dismiss was supported by an affirmation of the Clarkstown Town Attorney, which was in the same vein. Petitioner opposed the motion by arguing that since he is a "statutory officer” as well as a person aggrieved, his authority to sue springs from subdivision 7 of section 267 of the Town Law, and section 65 of the Town Law is irrelevant. Special Term accepted Texaco’s contentions and dismissed the petition on the ground that the suit was unauthorized. While it is apparent that petitioner is not "a person aggrieved”, Texaco does not dispute that he is a town officer. The town attorney’s affirmation declares that the action is unauthorized because a town officer must obtain town board permission to sue and Texaco’s brief cites Matter of Fox v Adams (206 Misc 236) where a building inspector was deemed a town officer who lacked the right to sue without town board authorization. Even without these admissions by Texaco, however, it seems to us that a building inspector is a town officer (see Matter of Haller v Carlson, 42 AD2d 829). Once that conclusion is reached, Matter of Bachety v Volz (65 Misc 2d 176, affd 39 AD2d 842) mandates reversal here. Acting in her official capacity, Bachety, a town councilwoman, instituted an article 78 proceeding attacking a determination of the zoning board of appeals. This court affirmed Special Term’s holding that the petitioner’s status as a town officer gave her standing to bring the proceeding. Therefore, unseemly as it is to have a building inspector seek review of the action of the board of appeals which has reversed him, petitioner had the standing to bring the instant proceeding. If such situations are to be avoided in the future, subdivision 7 of section 267 of the Town Law can be amended—as the Village Law has been (see Village Law, § 7-712, subd 3)—to provide that a town officer may not seek review of a board of appeals determination without first having obtained approval of the town board. Accordingly, the judgment must be reversed and the motion to dismiss the petition denied. Lazer, J. P., Mangano and O’Connor, JJ., concur.