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810913/2022
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STATE OF NEW YORK : COUNTY OF ERIE

SUPREME COURT :
: Index # 810913/2022
:
For a Judgment Pursuant to CPLR Article 78, : NOTICE OF PETITION
:
Daniel T. Warren : Hon. Dennis E. Ward
Petitioner, : IAS Assigned Justice
Against :
:
The Code Enforcement Officer of the Town of :
West Seneca. :
Respondent :

PLEASE TAKE NOTICE, that upon the verified petition of Daniel T. Warren, verified the

8th day of September, 2022, and the exhibit annexed thereto, an application will be made to a

Term of this court, to be held at the courthouse thereof, in Part 12 located at 25 Delaware

Avenue, Buffalo, New York 14202, on the 2nd day of November, 2022, at 9:30 a.m. of that day,

or as soon thereafter as counsel can be heard, for a judgment:

a) Directing Respondent to accept for filing the Petition attached as Exhibit A

together with payment of the applicable fee and deeming it filed as of August 19,

2022, and transmit all the papers constituting the record upon which the action

appealed from was taken to the West Seneca Zoning Board of Appeals;

b) Granting such other and further relief as the Court deems proper, together with the

costs and disbursements of this proceeding.

PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR § 7804(e) a certified transcript

of the record of the proceedings under consideration, an answer and supporting affidavits, if any,

or a motion to dismiss based on objections in point of law pursuant to CPLR § 7804(f), shall be

served and filed with the court at least five days before the return date specified above.

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Petitioner designates Erie County as the place of trial. The basis of venue is that Erie

County is where the material events took place and where the offices of Respondent is located

(CPLR §§ 504(2), 506(b), 7804(b)).

Dated: September 13, 2022

West Seneca, New York

Yours, etc.

_____________________________
Daniel T. Warren
Petitioner, Pro Se
836 Indian Church Road
West Seneca, New York 14224
716-288-6724

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STATE OF NEW YORK : COUNTY OF ERIE

SUPREME COURT :
: Index #
:
For a Judgment Pursuant to CPLR Article 78, : VERIFIED PETITION
:
Daniel T. Warren :

Petitioner, :
Against :

The Code Enforcement Officer of the Town of :

West Seneca. :
Respondent :
:

Petitioner, Daniel T. Warren, respectfully alleges:

1. This is special proceeding brought pursuant to CPLR Article 78 for relief in the nature of

mandamus to compel the Respondent The Code Enforcement Officer of the Town of West

Seneca, to accept for filing an appeal of a permit issued by the Code Enforcement Officer

and deem such filing as if it were filed on the August 19, 2022 in his office.

2. Petitioner, at all relevant times herein, resides in the Town of West Seneca, Erie County,

New York.

3. Upon information and belief, Jeffrey Scheiber, is the duly appointed Code Enforcement

Officer of the Town of West Seneca, NY.

4. The Code Enforcement Officer pursuant to West Seneca Town Code § 55-4(E) is charged

with the duty to "administer and enforce all the provisions of the Uniform Code and the

provisions of this chapter, including receiving building permit applications, reviewing plans

and specifications, conducting inspections, issuing permits for the erection, alteration,

relocation, addition, repair and/or demolition of buildings and structures, issuing certificates

of occupancy, collecting fees as set forth by the West Seneca Town Board and maintaining

and filing all records necessary for the administration of the office to the satisfaction of the

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West Seneca Town Board. The Code Enforcement Official is authorized to pursue

administrative actions and, in consultation with the Town Attorney, legal action, as

necessary, to abate conditions not in compliance with the New York State Uniform Fire

Prevention and Building Code, this chapter, or other laws, rules or regulations of the Town

York."
of West Seneca or of the State of New

5. On January 3, 2022, the Town Board for the Town of West Seneca, NY established that

Town Offices shall be open from "9:00 a.m. to 5:00 p.m. five days per week unless

Board."
otherwise restricted by the Town ( Item 47 for the minutes available at

http://www.westseneca.net/download file/9719/235 ).

6. On or about August 19, 2022, Petitioner submitted to Respondent, their agents, servants

and/or employees an Appeal to the Zoning Board of Appeals challenging the issuance of a

permit together with the applicable filing fee. A copy of that appeal is annexed to this

petition as Exhibit "A".

7. At the time that I presented the above Application for Board Review and filing fee the Code

Enforcement Officer was not available.

8. On the afternoon of August 22, 2022, I had a conversation with the Code Enforcement

Officer and explained to him the grounds for my appeal.

9. The Code Enforcement Officer asked to have until 9:30 a.m. so that he could review it with

the Town Attorney, to which Petitioner agreed.

10. I received a voicemail message on August 23, 2022, time stamped 9:38 from the Code

Enforcement Officer that stated my Appeal and payment will be returned to me because

under the advice of the Town Attorney there is no basis for me filing this appeal.

11. The proper method to challenge a decision of the Code Enforcement Officer's issuance of a

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permit is an administrative appeal to the zoning board of appeals (see Town Law § 267-a[4]

West Seneca Town Code § 120-56(A); Matter of Letourneau v Town of Berne, 56 A.D.3d

880).

12. Town Law § 267-a(5)(b) provides: "An appeal shall be taken within sixty days after the

filing of any order, requirement, decision, interpretation or determination of the

administrative official, by filing with such administrative official and with the board of

appeals a notice of appeal, specifying the grounds thereof and the relief sought. The

administrative official from whom the appeal is taken shall forthwith transmit to the board

of appeals all the papers constituting the record upon which the action appealed from was

taken."

13. West Seneca Town Code § 120-58(B) provides: "Filing appeals. An appeal to the Board of

Appeals from any ruling of any administrative officer charged with the enforcement of this

chapter may be taken by any person aggrieved or by any officer, department, board or

bureau of the town. Such appeal shall be taken within such time as shall be prescribed by the

Board of Appeals by general rules, by filing with the officer from whom the appeal is taken

and with the Board of Appeals a notice of appeal, specifying the grounds thereof. The

officer from whom the appeal is taken shall forthwith transmit to the Board of Appeals all

taken."
the papers constituting the record upon which the action appealed from was

14. From the face of the subject Appeal (Exhibit "A") it alleges an appropriate basis for the

Zoning Board of Appeals to review the issuance of the subject permit.

15. Respondent has a purely ministerial duty to accept for filing any Appeal under West Seneca

Town Code § 120-58(B) and Town Law § 267-a(5)(b).

16. Respondent failed to perform this duty enjoined upon them by law.

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17. Petitioner has a clear legal right to file an application for board review and to have the West

Seneca Zoning Board of Appeals determine the merits of it.

18. Respondent Code Enforcement Officer has no authority to go beyond the form of the Appeal

submitted to him and make any determination on its merits. That is for the Zoning Board of

Appeals to decide.

19. The Code Enforcement Officer's sole role on an appeal from one of his decisions is to

provide the zoning board of appeals "all the papers constituting the record upon which the

taken."
action appealed from was

20. To allow the Code Enforcement Officer to have any role, other than a ministerial role, in

processing an appeal of his or her opinion would represent a conflict of interest and deprive

those appealing his or her decision an impartial forum and/or procedures compatible with

the requirements of due process of law.

21. The failure and refusal by Respondent to accept for filing the Appeal as presented to the

Code Enforcement Officer is in violation of lawful procedure, in excess of his jurisdiction

and affected by an error of law.

22. The failure of the Code Enforcement Officer to timely accept for filing an Appeal under

West Seneca Town Code § 120-58(B) and Town Law § 267-a(5)(b) affects a substantial

right of Petitioner because they are either delayed on filing or the filing is refused thereby

depriving the Petitioner and other appellants of the stay provisions of West Seneca Town

Code § 120-58(E) and Town Law § 267-a(6).

23. The Code Enforcement Officer's refusal to accept Petitioner's Appeal under West Seneca

Town Code § 120-58(B) and Town Law § 267-a(5)(b) affects a substantial right of

Petitioner and other appellants in that it prevents them from exhausting their administrative

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remedies and deprives them of the to seek judicial review (see Matter of Hays v Walrath,

271 AD2d 744, 745 [2000]). This also deprives Petitioner of his due process rights under

the New York Constitution.

24. No prior application for the relief sought herein has been made.

WHEREFORE, petitioner respectfully requests judgment:

a) Directing Respondent to accept for filing the Petition attached as Exhibit A together

with payment of the applicable fee and deeming it filed as of August 19, 2022, and

transmit all the papers constituting the record upon which the action appealed from

was taken to the West Seneca Zoning Board of Appeals;

b) Granting such other and further relief as the Court deems proper, together with the

costs and disbursements of this proceeding.

Dated: September 8, 2022

West Seneca, New York

Yours, etc.

Daniel T. Warren

Petitioner, Pro Se
836 Indian Church Road
West Seneca, New York 14224
716-288-6724

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State of New York )

County of Erie ) ss:

I Daniel T. Warren, am the Petitioner in the within proceeding. I have read the foregoing
Verified Petition and know the contents thereof. The contents are true to my own knowledge

except as to matters therein stated to be alleged upon information and belief, and as to those matters
I believe them to be true.

Danie T. arren
Sworn to before me this

1 day of September, 2022

Notary PWlic / Cominissioner of Deeds

Christopher M. Griesbaum
Commissioner of Deeds
In and for Erie County, New Yor

My Commission Expires: 12/31/-

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Exhibit “ A”
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APPLICATION TO BOARD0F APPˆALS
7 6-288-6724
Tel. No. Appeal No.
08/19/2022 .
pat

10 THE ZONING BOARD QF APPEALS, WEST SENECA, NEW YORK:

Daniel T. Warren 836 Indian Church RD, West Seneca, NY
I (we)

HEREBY APPEAL TO THE ZONING BOARD OF APPEALS FROM THE

DECISION OF THE BUILDING INSPECTOR ON AN APPLICATION FOR A BUILDING PERMIT, WHEREBY THE BUILDING
. issue a permit to Canisius High School, Permit #20220685 on July 25, 2022
INSPECTOR DID

O A PERMIT FOR USE O A CERTIFICATE OF EXISTING USE

A PERMIT FOR OCCUPANCY A CERTIFICATE OF ZONING COMPLIANCE
O A TEMPORARY PERMIT OR ˆXTENSION THEREOF AREÃ PERMIT
1. Applicant is the PROPERTY OWNER
O CONTRACTOR FOR THE WORK CONCERNED HEREIN
PXOSPECTIVE TENANT
Aggrieved Person
OTHFR (Describe)
2448 and 2885 Clinton Street, West Seneca, NY 14224
2. LOCATION OF THE PROPERTY
See attached STATEMENT OF GROUNDS FOR APPEAL
3. State in general the exact nature of the permission required,

4. PREVIOUS APPEAL. No previous appeal has been made with respect to this decision of the Building Inspector or with respect
0 Augus[3 07
to this property, except the appeal made in Appeal No , dated , 20

5. REASON FOR APPEAL.

A. A Variance to the Zoning Ordinance is requested because strict application of the ordinance would produce undue hardship, or
the hardship created is unique and is not shared by all properties alike in the immediate vicinity of this property and in this use district,
or the variance would observe the spirit of the ordinance and would not change the character of the district because
N/A

See attached STATEMENT OF GROUNDS FOR APPEAL

B. Interpretation of the 7oning ordinance is req11ested heeánce.

C. A Special or Temporary Permit or an Extension thereof Under the Zoning Ordinance is requested pursuant to Article ,

Section , Subsection , Paragraph of the Zoning Ordinance, becans8

Applicant's Signature

TO BE COMPLETED BY THE BUILDING INSPECTOR

L Provision(s) of the Zoning Ordinance Appealed, including article, section, subsection or paragraph of the Zoning Ordinance

2. Zoning Classification of the property concerned in this appeal

3. Type of Appeal;
O Variance to the Zoning Ordinance.
O Interpretation of the Zoning Ordinance or Zoning.Map.
O Special or Temporary Permit or an xtension thereof under the Zoning Ordinance.

4. A statement of any other facts or data which should be considered in this appeal.

Building inspector
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ZONING BOARD OF APPEALS

TOWN OF WEST SENECA
: STATEMENT OF GROUNDS FOR APPEAL
Appeal of the Issuance of a Building Permit :
and Appeal for Interpretation, :
:
Daniel T. Warren :
Appellant, :
:

This is an appeal of the code enforcement officer’ s issuance of Permit #20220685 on July

25, 2022, and appeal for interpretation. The Code Enforcement Officer relied on the opinion in

Zoning Board of Appeals #2007-051 (a copy of which is attached hereto as Exhibit “ A” ). This

was error because this prior opinion was issued based upon the representations of what the

property would be used for back in 2007 rather than its current actual use. Now after 15 years of

history of the actual use of this property as recreational and not an educational use as the

property owner represented back in 2007 it is clear that what is currently taking place on this

property is inconsistent with the applicable residential zoning. It is now clear that the principal

use of this property is for impermissible recreational use rather than permissible educational

uses.

Appellant’ s standing to challenge the zoning decisions of the property located at 2448

and/or 2885 has been judicially established on the prior appeal of Zoning Board of Appeals

#2007-051 in Grasso v. Town of West Seneca, et al , 63 AD3d 1629 (4th Dept. 2009).

The principle, dominant, and primary use of this land has been and is planned to be is as

athletic fields. In fact, according the Canisius High School Student Handbook “ the purchase of

63 acres on Clinton Street for an outdoor athletic facility in 2003.” (

https://canisiusrowing.com/wp-content/uploads/2018/07/CHSStudentHandbook.pdf ).

While Phase 1 of this project was permitted to go forward based on Respondent Canisius’
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representations that it will be used for educational classes there is at best a de minimis number of

educational classes, if any at all, held on this site since the completion of Phase 1.

This property is zoned as 100-A Residential. The permitted principle and accessory uses

for this property is defined in West Seneca Town Code § 120-17.

The only permitted principal purpose that comes close to the proposed use in this case is

set forth in West Seneca Town Code § 120-17(A)(5): “ Commercial picnic grove, provided that

no amusement devices shall be permitted other than customary playground apparatus.”

The Subject Parcel would therefore need to be rezoned to C-1 or C-2 because such use is

specifically permitted by West Seneca Town Code §§ 120-19, 120-20, 120-21 and 120-22 or

pursuant to a use variance.

Since the use of this land as athletic fields is a non-conforming use, if not unauthorized, it

may not be enlarged or extended pursuant to West Seneca Town Code § 120-45[c].

This project is not compatible with the surrounding neighborhood and not in harmony

with the Comprehensive Plan of the Town of West Seneca because portions of the site are shown

as part of an extensive Greenway / Preservation Area that recommends limiting development

along the creeks to protect the floodways and to preserve them for implementation of a trail

system (

http://westseneca.net/sites/default/files/WS%202016%20Comprehensive%20Plan%20ADOPTE

D(3).pdf ).

In Cornell Univ. v Bagnardi, 68 NY2d 583, 593 [1986] The Court of Appeals held that

“ [t]he controlling consideration in reviewing the request of a school or church for permission to

expand into a residential area must always be the over-all impact on the public's welfare.

Although the special treatment afforded schools and churches stems from their presumed
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beneficial effect on the community, there are many instances in which a particular educational or

religious use may actually detract from the public's health, safety, welfare or morals. In those

instances, the institution may be properly denied. There is simply no conclusive presumption that

any religious or educational use automatically outweighs its ill effects. The presumed beneficial

effect may be rebutted with evidence of a significant impact on traffic congestion, property

values, municipal services and the like” (citations omitted)”

The last flooding event in the Lexington Green Neighborhood prior to Phase 1 of this

project was in 1979. Since the completion of Phase 1 it has impacted a number of adverse

environmental effects such as traffic has been an issue on Clinton Street during various athletic

events held on the property. Flooding has increased in frequency and intensity necessitating

periods of temporary evacuation of neighboring residents and attendant property damage to

others in the neighborhood. The proximity of this property to the Oxbow wetland and

conservation area has a negative impact to it as far as noise and its effect on the red headed

woodpecker which is a species of special concern.

Therefore, any use variance should not be granted or considered.

The Code Enforcement Officer failed to confirm that the intended use as represented by

Respondent Canisius in the prior proceedings for Phase 1 is actually being used as represented

and to the same degree to establish its current use as educational.

Pursuant to West Seneca Town Code § 120-5(A) “ If a use is specifically named as a

permitted use could also be construed as being incorporated within a more general listing, the

more specific listing shall control and such use shall not be deemed to be included in the more

general listing.”

Pursuant to West Seneca Town Code § 120-5(B) “ No use shall be permitted in any
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zoning district unless it is listed specifically or generally as a permitted use in said zoning

district.”

Pursuant to West Seneca Town Code § 120-10(B) “ Whenever any provision of this

chapter is at variance or in conflict with any other provision of this chapter or any other statute,

local ordinance or regulation covering any of the same subject matter, the most restrictive

provision or the one imposing the higher standard shall govern.”

West Seneca Town Code § 120-64 defines “ ACCESSORY USE OR STRUCTURES —

A use or structure customarily incidental and subordinate to the principal use or building and

(except as otherwise provided) located on the same lot with such principal use or building.”

For a use to be a proper accessory use it must be incidental to a permitted use of the land.

The athletic field cannot be considered an accessory use to a school/educational use because

Canisius does not intend to build a school or educational use on the property for academic study

that will be the principal use thereof. Rather the intended principal use of the subject property is

as an athletic field which either falls within a permitted use under the zoning classification of C-1

under amusements if it is to be conducted in an enclosed building or C-2, M-1, or M-2 if it will

not be in an enclosed building.

Whether or not the property owner is a religious or educational institution is not the issue.

The issue is whether the use of the property is currently being used as a permissible educational

use or an impermissible recreational use (Matter of Sid Jacobson Jewish Community Ctr., Inc. v

Zoning Bd. of Appeals of the Inc. Vil. of Brookville, 192 A.D.3d 693 (2nd Dept 2021).

The Appellate Division Second Department has held that “ [w]hile an educational use

may not be wholly excluded from a residential district ( Matter of New York Inst. of Technology

v Le Boutillier , 33 N.Y.2d 125, 130), case law in this State reveals that the concept of
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"educational use" does not include activities which are primarily recreational in nature (see,

Matter of Schoen v Bowne, 298 N.Y. 611, affg 273 App Div 1020; Matter of 4M Club v

Andrews, 11 A.D.2d 720; 12 NY Jur 2d, Buildings, Zoning, and Land Controls, § 179, at 178).

Moreover, it has been held that instructional programs involving classes in ceramics and

horsemanship are not educational in nature ( Matter of Schweizer v Board of Zoning Appeals, 8

Misc 2d 878; Village of E. Hampton v Mulford, 188 Misc 1037; see also, Matter of Donegan v

Griffin, 270 App Div 937 [where an order granting a variance for a limited time to permit the

operation, on property in a residential zone, of a riding academy was reversed on the ground that

the record failed to disclose adequate facts for the determination]). More recently, courts have

recognized, albeit in dictum, that the activities of a riding academy are not educational in nature

(see, Matter of Imbergamo v Barclay, 77 Misc 2d 188, 191-192; Incorporated Vil. of Muttontown

v Friscia, 58 Misc2d 912, 913). Such instruction does not constitute a school in the sense

intended by the use of that term in zoning regulations, where the emphasis is on the academic

rather than the recreational (1 Anderson, New York Zoning Law and Practice §§ 11.17, 11.19

[3d ed 1984])." (Asharoken v. Pitassy, 119 A.D.2d 404, 412-413 (N.Y. App. Div. 1986)).

The Code Enforcement Officer failed to make the requisite inquiry and findings that the

building permit issued based on the current actual use of the property and did not properly apply

the zoning code to those facts and erroneously relied on the August 3, 2007, decision of the West

Seneca Zoning Board of Appeals decision based on Respondent Canisius anticipated use of the

property.
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DATED: August 18, 2022

West Seneca, New York

Yours, etc.

__________________________
Daniel T. Warren
836 Indian Church Road
West Seneca, New York 14224
716-288-6724
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Exhibit “ A”
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TOWN OFWEST SENECA

SUPERVISOR
PAUL T. CLARK
TOWNCOUNCE,
CHRISTOPHER F. OSMANSKI
PATIUCIA C. DEPASQUALE, RMC/CMC
TOWN VmcENT L GRABER, JR.
CRAIo J. HIcKs
REGISTRAR
OFVrTALSTATISTICS CHRISTNA WLEKLINSKI BOve
NOrARYPUBLIC
RECORDSMANAGEMENTOFFIcun

August 3, 2007

Mr. Donald Grasso

64 Lexington Green .
West Seneca, NY 14224

Re: Zoning Board of Appeals #2007-051

Property located at 2448-2869 Clinton Street

Dear Applicant:

Enclosed please find a copy of the written decision of the Zoning Board of

Appeals with regard to the above matter.

Very uly yours,

Patricia C. DePasquale, RMC C

Town Clerk
cc: Harris Beach

Web Address: www.weStseneca.net email: pdepasquale@twsny.Org

TOWN HALL 1250 UNION ROAD " WEsT SENECA,NEW YORK 14224 " (716) 558-3215 " FAX (716) 558-2250 4Aºª
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DECISION OF THE WEST SENECA ZONING BOARD OF APPEALS

APPEAL NO 2007-051

Before the Zoning Board of Appeals is the appeal of Donald Grasso of 64

Lexington Green, West Seneca, New York challenging the determination of the Town of
West Seneca Building Inspector, William Czuprynski, issuing a building permit to
Canisius High. School for construction of a athletic facility with classroom at 2448-2869
Clinton Street, West Seneca New York.

DECISION

It is the decision of the West Seneca Zoning Board of Appeals that the Building
Inspector, William Czuprynski, properly issued a building permit to Canisius High
School. Section 120-17 of the West Seneca Town Code permits school uses in property
zoned R-100A by private, non-profit elementary or secondary schools accredited by the
New York State Department of Education.

This decision was made after considering a number of factors. First, a public

hearing was properly held on July 25, 2007 at the regularly scheduled monthly Zoning
Board of Appeals meeting. At the public hearing testimony was presented by the
Appellant, Donald Grasso, representatives of Canisius High School and members of the
public. Second, the Board reviewed the documents presented at the public hearing by
Mr. Grasso and Canisius High School. Finally, the Board reviewed a number of New
York State Court Cases directly related to the application of local zoning ordinances to
school or educational uses.

Based on the testimony presented at the hearing and documentation provided

Canisius High School is a legally charted by the New York State Department of
Education and Accredited by the Commission on Secondary Schools of the Middle States
Association. kelated to its mission, the school has a curriculum, a plant consisting of
adequate facilities and a staff appropriately qualified to meet educational objectives. The .
Clinton Streee Athletic and Classroom facility will directly assist in the Canisius having
accomplishin# its educational objectives.

Finally, the case history supports the determination made by the Building
Inspector when the building permit was issued. There are a number of New York State
Court cases which hold that school uses and religious uses enjoy a special treatment as to
residential zoning ordinances. The Court has allowed schools and religious institutions to
expand its uses in a residentially zoned neighborhood where other non conforming uses
would not be allowed. These cases are based on the fact that schools by their very nature ;
further public'health, welfare, morals and safety. In effort to keep this decision brief, a
list of cases rdlied upon is attached hereto and made a part herof.
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Exhibit A

Supporting Cases Appeal No.2007-051

1. New York Institute of Technology, Inc. v. Ruckgraber, et al., 65 Misc.2d 241

2. The Harvey School v. Town of Bedford, 34 A.D.2d 965
3. Town of Islip v. Dowling College, 275 A.D.2d 366
4. Cornell University v. Bagnardi et al., 107 A.D.2d 398
5. Rorie et al. v. Woodmere Academy, 52 N.Y.2d 200
6. Incorporated Village of Asharoken v. Pitassy, et al. 119 A.D.2d 404
7. Cornell University v. Bagnardi, 68 N.Y.2d 583
8. Association of Zone A & B Homeowners Subsidiary, Inc. et al. v. Zoning
Board of Appeals of City of Long Beach, et al., 298 A.D.2d 583
9. Richmond, et al., v. City of New Rochelle Board of Appeals on Zoning, 24
A.D.3d 782
10. Albany Preparatory Charter.School, et al. v. City of Albany, 31 A.D.3d 870