2022 062 120822 Full

DANIEL T.
WARREN
836 Indian Church Road
West Seneca, New York 14224-1235
Email: [email protected]
December 11, 2022
Attn: Amy Kobler, Secretary

Zoning Board of Appeals of the Town of West Seneca
Town Hall
1250 Union Road
West Seneca, New York 14224
RE: 2022-062 - Request of Dan Warren for an appeal and interpretation of the Code
Enforcement Officer issuance of a permit for property located at 2448 and 2885
Clinton Street.
To the Zoning Board of Appeals of the Town of West Seneca:
In further support of the above referenced appeal enclosed are the following documents:
• Verified Petition in Warren v. Code Enforcement Officer of the Town of West

Seneca, Supreme Court, Erie County, Index #810913/2022;
• Respondent’s Cross-Motion in Warren v. Code Enforcement Officer of the Town
of West Seneca, Supreme Court, Erie County, Index #810913/2022;
• Petitioner’s Opposition to Cross-Motion in Warren v. Code Enforcement Officer
of the Town of West Seneca, Supreme Court, Erie County, Index #810913/2022;
• Order and Judgment in Warren v. Code Enforcement Officer of the Town of West
Seneca, Supreme Court, Erie County, Index #810913/2022;
In regards to my standing to bring this appeal, I must show that I will suffer an injury-in-
fact and that the alleged injury falls within the zone of interest sought to be protected by the
statute (see Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 774 [1991]; Matter of
Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 413
[1987]). In land use matters, a petitioner must show “direct harm, injury that is in some way
different from that of the public at large” (Society of Plastics Indus. v County of Suffolk, 77
NY2d at 774; see 159-MP Corp. v CAB Bedford, LLC, 181 AD3d 758, 761 [2020]; Matter of
Panevan Corp. v Town of Greenburgh, 144 AD3d 806, 807 [2016]). “An allegation of close
proximity may give rise to an inference of damage or injury that enables a nearby property owner
to challenge a land use decision without proof of actual injury” (Matter of CPD NY Energy
Corp. v Town of Poughkeepsie Planning Bd., 139 AD3d 942, 943-944 [2016]). “However, this
does not entitle the property owner to judicial review in every instance” (id. at 944). “Rather, in
addition to establishing that the effect of the proposed change is different from that suffered by
the public generally, the [property owner] must establish that the interest asserted is arguably
within the zone of interests the statute protects” (id.; see Matter of Sun-Brite Car Wash v Board
West Seneca Zoning Board of Appeals
December 11, 2022
Page 2 of 4
of Zoning & Appeals of Town of N. Hempstead, 69 NY2d at 414; 159-MP Corp. v CAB
Bedford, LLC, 181 AD3d at 761).
It should be noted that the Court of Appeals in Matter of Sun-Brite Car Wash v Board of
Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, held that:
Standing principles, which are in the end matters of policy,

should not be heavy-handed; in zoning litigation in particular, it is
desirable that land use disputes be resolved on their own merits
rather than by preclusive, restrictive standing rules (see, Matter of
Douglaston Civic Assn. v Galvin, supra, at 6). Because the welfare
of the entire community is involved when enforcement of a zoning
law is at stake, there is much to be said for permitting judicial
review at the request of any citizen, resident or taxpayer; this idea
finds support in the provision for public notice of a hearing. But
we also recognize that permitting everyone to seek review could
work against the welfare of the community by proliferating
litigation, especially at the instance of special interest groups, and
by unduly delaying final dispositions (see, 4 Anderson, American
Law of Zoning § 27.09 [3d ed]; but see, Ayer, Primitive Law of
Standing in Land Use Disputes: Some Notes From a Dark
Continent, 55 Iowa L Rev 344, 360).
While something more than the interest of the public at

large is required to entitle a person to seek judicial review--the
petitioning party must have a legally cognizable interest that is or
will be affected by the zoning determination--proof of special
damage or in-fact injury is not required in every instance to
establish that the value or enjoyment of one's property is adversely
affected (see, Matter of Douglaston Civic Assn. v Galvin, 36
NY2d 1, supra; Little Joseph Realty v Town of Babylon, 41 NY2d
738, supra). The fact that a person received, or would be entitled to
receive, mandatory notice of an administrative hearing because it
owns property adjacent or very close to the property in issue gives
rise to a presumption *414 of standing in a zoning case. But even
in the absence of such notice it is reasonable to assume that, when
the use is changed, a person with property located in the immediate
vicinity of the subject property will be adversely affected in a way
different from the community at large; loss of value of individual
property may be presumed from depreciation of the character of
the immediate neighborhood. Thus, an allegation of close
proximity alone may give rise to an inference of damage or injury
that enables a nearby owner to challenge a zoning board decision
without proof of actual injury (see, Matter of Prudco Realty Corp.
v Palermo, 93 AD2d 837, affd on other grounds 60 NY2d 656;
December 11, 2022
Page 3 of 4
Matter of Marasco v Luney, 99 AD2d 492, lv denied 63 NY2d

605; see also, 4 Anderson, American Law of Zoning § 27.18 [3d
ed]; 3 Rathkopf, Zoning and Planning § 43.04).
While an appellant’s close proximity to the subject property has presumptive standing to
challenge a building permit it does not foreclose standing to an appellant who while not in close
proximity but is suffering some harm from the zoning decision that is different in degree that the
community at-large. In the Verified Petition in the prior litigation against this Body and Canisius
I alleged harm that is different in degree than that to the community at-large and I alleged that
fell in the zone of interests that the zoning laws are to protect.
I have established in the prior litigation against this body and Canisius that I will suffer
environmental injuries to my property in the form of water issues and other issues. These alleged
injuries are different from those suffered by the public at large (see Matter of Save the Pine
Bush, Inc. v Common Council of City of Albany, 13 NY3d 297, 305-306 [2009]; Society of
Plastics Indus. v County of Suffolk, 77 NY2d at 774), and fell within the zone of interests
protected by the Town's zoning laws (see Matter of Sun-Brite Car Wash v Board of Zoning &
Appeals of Town of N. Hempstead, 69 NY2d at 414; Matter of Youngewirth v Town of Ramapo
Town Bd., 98 AD3d 678, 680 [2012]; Matter of East Hampton Indoor Tennis Club, LLC v
Zoning Bd. of Appeals of Town of E. Hampton, 83 AD3d 935, 937 [2011]; Matter of Veteri v
Zoning Bd. of Appeals of the Town of Kent, 202 A.D.3d 975).
Both this Body and Canisius raised the defense of lack of standing in that prior litigation
in their respective answers. Both the Trial Court and the Appellate Division reached the merits
of the challenge to the issuance of the March 26, 2007, building permit in that prior litigation.
The Appellate Division, Fourth Department reached this issue without reinstating the other two
petitioners. The Appellate Division determined that I alone had standing without the other two
petitioners. Therefore, this body is bound by the determination of the Appellate Division, Fourth
Department that I have standing to challenge the issuance of a building permit issued on this
property for this project and cannot relitigate it or determine that I do not have standing.
The Representative of Canisius High School objected to the notice that they received.
Canisius received all the notice that they were due. To satisfy the public notice requirement of
the Town Law or a corresponding local law, the notice “should not mislead” (Matter of Gernatt
Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 678 [1996]; see Matter of McGrath v Town
Bd. of Town of N. Greenbush, 254 AD2d 614, 617 [1998], lv denied 93 NY2d 803 [1999];
Reizel, Inc. v Exxon Corp., 42 AD2d 500, 504 [1973], affd 36 NY2d 888 [1975]), must be “clear
and unambiguous” and, “[w]here there is doubt as to the sufficiency of the notice, such doubt
will be resolved against the notice” (Matter of Gardiner v Lo Grande, 92 AD2d 611, 612 [1983],
affd 60 NY2d 673 [1983] [internal quotation marks and citations omitted]; see Coutant v Town
of Poughkeepsie, 69 AD2d 506, 511-512 [1979]). When a hearing on an appeal is scheduled by a
zoning board, public notice of the hearing must be furnished (see Town Law § 267-a(7);West
Seneca Town Code § 120-58(F)). Canisius was not entitled to personal notice as neither the
Town Law nor the West Seneca Town Code provides for such.
December 11, 2022
Page 4 of 4
The public notice of the hearing of this appeal was published in The West Seneca Bee on
December 1, 2022. This is more than the 5 days required by statute. The nature of this appeal in
this notice gives ample notice that it concerns “issuance of a permit for property located at 2448
and 2885 Clinton Street.”
It should be noted that the attorneys representing Canisius was on notice that this appeal
was to be noticed and heard by this body. In an e-mail dated November 27, 2022, they were
provided a copy of Justice Ward’s Order and Judgment in Warren v. Code Enforcement Officer
of the Town of West Seneca, Supreme Court, Erie County, Index # 810913/2022. Attached
hereto is a copy of this e-mail.
In any event, Canisius received notice and appeared at the hearing (see, Matter of Gaona
v Town of Huntington Zoning Bd. of Appeals, 106 AD2d 638, 640).
I renew my objection to Mr. Trapp acting in any role in the hearing and determination of
this appeal. The due process clause of the New York State and United States Constitutions
provides that any appellant/plaintiff/petitioner/litigant to a fair and impartial forum. As
previously stated, Mr. Trapp represented the Code Enforcement Officer challenging my very
ability to commence this appeal (Warren v. Code Enforcement Officer of the Town of West
Seneca, Supreme Court, Erie County, Index # 810913/2022). Mr. Trapp represented the West
Seneca Planning Board in my challenge against them for granting site plan review over this very
same project. Mr. Trapp actively tried to prevent me from learning of the issuance of this permit
even though it is a public document (As evidence by the e-mail exchange that ended with my
July 19, 2022 e-mail (Attached hereto is a copy of this e-mail)).
Mr. Trapp’s participation as the attorney for the Zoning Board of Appeals in this appeal
deprives me of my right to a fair and impartial forum to present my claims (Marshall v. Jerrico,
Inc., 446 U.S. 238, 242 (1980) (“The Due Process Clause entitles a person to an impartial and
disinterested tribunal in both civil and criminal cases.”)).
For the above reasons the decision of the Code Enforcement Officer to issue the
challenged permit must be vacated and the building permit rescinded.
Sincerely,
Daniel T. Warren
FILED: ERIE COUNTY CLERK 09/13/2022 03:11 PM INDEX NO. 810913/2022
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/13/2022
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
716-288-6724
2 of 2

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

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
1 of 6
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
2 of 6
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.
3 of 6
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
4 of 6
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.

Yours, etc.
Daniel T. Warren
Petitioner, Pro Se
716-288-6724
5 of 6
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/-
6 of 6
Exhibit “ A”
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
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’
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
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
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
"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.
DATED: August 18, 2022

Yours, etc.
__________________________
Daniel T. Warren
716-288-6724
Exhibit “ A”
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: [email protected]

TOWN HALL 1250 UNION ROAD " WEsT SENECA,NEW YORK 14224 " (716) 558-3215 " FAX (716) 558-2250 4Aºª
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.
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
SUPREME COURT: STATE OF NEW YORK

COUNTY OF ERIE
DANIEL T. WARREN,
Petitioner NOTICE OF MOTION
-against- 810913/2022
THE CODE ENFORCEMENT OFFICER OF THE

TOWN OF WEST SENECA
Respondent
PLEASE TAKE NOTICE that upon the affirmation of CHRIS G. TRAPP, ESQ.,
dated October 26, 2022, the affidavit of Jeff Schieber, dated October 27, 2022, and upon all the
pleadings and proceedings heretofore had herein, Respondent, THE CODE ENFORCEMENT
OFFICER OF THE TOWN OF WEST SENECA, NEW YORK will move this Court at 9:30
a.m. on November 2, 2022 before the Hon. Dennis E. Ward, J.S.C., at Supreme Court, located
at Part 12, 25 Delaware Avenue, Buffalo, NY 14202 for an order pursuant to CPLR 7804
dismissing the petition.
Dated: October 27, 2022
Buffalo, New York
Respectfully submitted,
Chri G ap sq.
GRE APP, PLLC
Attorney for Respondent

14 Lafayette Square, Ste. 1700
Buffalo, New York 14203
(716) 856-5800
[email protected]
To:
Daniel T. Warren
PlaintiffProSe
1 of 2
Telephone: (716) 822-0476
2 of 2

COUNTY OF ERIE
DANIEL T. WARREN,
Petitioner AFFIRMATION
-against- 810913/2022

TOWN OF WEST SENECA, NEW YORK
Respondent
Chris G. Trapp, affirms upon information and belief, that
He is an attorney duly licensed to practice in the State of New York and is a member of
Greco Trapp, PLLC, attorneys for the Code Enforcement Officer of the Town of West Seneca.
He is also the Attomey for the Town having been so appointed on January 3, 2022. He is also
counsel to the Planning Board of the Town of West Seneca and has had an opportunity to
review the submissions relative to this matter and all of the files of the Town. He also has
represented the Town in the related actions filed by this same Petitioner relative to the same
construction project by Canisius High School under Index numbers 809040/2021 and
808016/2022 before the Hon. Donna Siwek, J.S.C. and the Hon. Mark J. Grisanti, J.S.C.,
respectively. That does not include the first action filed prior to your affirmant's retention
several years ago when the first Canisius construction project was undertaken. That action was
ultimately dismissed and affirmed by the Appellate Division. By reason of his association with
this matter and the prior matters, he is fully familiar with the facts and circumstances contained
herein.
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This affirmation is made in support of Respondent's motion to dismiss the Petition in its
entirety. A brief historical review is required, however, since Petitioner conveniently neglected
to advise the Court of the other related actions, one of which was still pending before Justice
Grisanti at the time Petitioner filed this instant action. The gravamen of Petitioner's repeated
litigation surrounds the development of first the football complex approved by the Zoning
Board of Appeals, later the Planning Board of the Town of West Seneca, and ultimately by the
Town Board of the Town of West Seneca with respect to the proposal submitted by Canisius
High School. As previously mentioned, the first suit filed by Petitioner was not successful
before either the lower court or the Appellate Division. The first portion of the project was thus
built by Canisius and has been continuously operated since then.
When a proposal was made with respect to the creation of baseball fields on the other
part of the land owned by the school, Petitioner challenged the procedure implemented by the
then Town Attomey. The project, including the site plan, was approved by the respective Town
entities after which your affirmant was retained as the Attorney for the Town. By then the
actions of the Town had been completed and the Petition filed. The Court ultimately heard the
matter in April of 2022 and determined that the proper procedure was not followed by the Town
in 2021 and so the Court, the Hon. Donna Siwek, J.S.C. presiding, reversed the determination
by the Town and remanded the matter for further proceedings consistent with that finding.
Your affirmant specifically recalls the Petitioner taking the position that unless the
determination of the Planning Board was to issue a positive SEQR declaration, regardless of the
nature or extent of the evidence or the procedure being correct, Petitioner would file another
action against the Canisius project. Reviewing what had been done prior to your affirmant's
retention, a decision was made not to appeal that the more prudent and cost-
ruling and, instead,
2 of 9
effective alternative was to undertake the process in a manner consistent with the Court's
directive. That was what was done by the Town Planning Board.
Not satisfied with the procedural correction, and as Petitioner had stated, he filed an
action by way of an Order to Show Cause seeking a Temporary Restraining Order and
injunctive relief. The TRO was not granted and the Court, the Hon. Mark J. Grisanti, J.S.C.
presiding, set a scheduling order for the submission of papers and an argument date for the
Petition at the end of September. There was no directive in the papers that the process was to
stop on the part of Canisius. As a result, after the submission of the proper applications and
paperwork, approvals by the Town Code Enforcement Officer were granted.
Thereafter, Petitioner sought voluntary agreement by both of the attorneys in that suit to
move up the argument date to the middle of August. Since your affirmant had a minor surgical
procedure scheduled for the middle of August and there were other pressing matters scheduled,
75th
including your affirmant acting as the co-chair for the + 2 anniversary and Fall in
meeting
Washington, D.C. for the NYSBA Local & State Government Law Section (it was originally
scheduled for Philadelphia in conjunction with the Pennsylvania Bar but cancelled due to the
pandemic), the request was not acceptable. Nevertheless, Petitioner filed another motion for
another TRO and injunctive relief which was argued at the end of August. That TRO was also
denied and the Court offered to hear and decide the entire case on that date if Petitioner wished.
28th
Petitioner, in open Court, advised that he wanted to keep the September argument data
Prior to the scheduled return date, Petitioner sought a Judicial Subpoena Duces Tecum
against the County of Erie to recover certain documents, which was granted, and then filed a
motion for a default on the basis that an answer had not been submitted even though the
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submission of either an Answer or Motion to Dismiss is not required until five days prior to the
return date of the Petition. In that instance, as now, a Motion to Dismiss was filed in a timely
fashion.
After oral argument on September 28th, the Court denied the relief requested in the
Petition and granted the Motion to Dismiss directing counsel to obtain a copy of the transcript
of the oral argument to attach to the Order/Judgment which would be filed. As of the date of
this affirmation, this office has not yet received the transcript from the stenographer which is
why the Judgment has not been executed by the Court or filed. Nevertheless, it was made clear
that the Canisius project could continue unabated.
As discussed above, even prior to Justice Grisanti's ruling, Petitioner filed the instant
apple"
action essentially seeking "another bite of the by this time seeking a ruling by the Zoning
Board of Appeals on whether a variance was required by Canisius prior to its project being
approved. Petitioner has couched the Petition by arguing that he had the right to challenge the
grant of the permits for construction before the ZBA. Petitioner alleges that he had the right to
file an administrative appeal and that the Code Enforcement Officer was required to accept his
appeal and that, ultimately, the ZBA had to make a determination on his appeal with respect to
the decision of the Code Enforcement Officer to grant a permit.
Petitioner's argument fails on multiple basis.
Petitioner's request for relief is untimely and he is guilty of laches based upon the timing
of the request which was made well after the approvals from the Town were granted. What
Petitioner seeks is not really a challenge of the authority of the CEO to grant a permit when the
paperwork is filed, but rather, Petitioner seeks another avenue to challenge the construction
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project of Canisius, even though he has already done it several times. Petitioner seeks to
challenge the issue of the need for a variance by Canisius for the baseball fields as is clearly
evident with the submission of the Exhibits to the Petition which date back to the SEQR and
building permit from fifteen years ago which was the subject of the first lawsuit that was finally
rejected by the Fourth Department. (See Docket No. 2 attached to the Petition). Therein,
Petitioner, in essence, challenges the ZBA opinion from 2007 by arguing that the use granted
then is not permissible under the code.
"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
uses."
recreational use rather than permissible educational See Exhibit A, Statement of
Grounds for Appeal (Docket No.2).
As is clear, this is not really about the granting of the permit, it is about the use of the property.
The time in which to challenge that use, which by Petitioner's own admission has been ongoing
for fifteen (15) years, is not today. Petitioner also, upon information and belief, challenged that
initial determination then in front of the ZBA and he seeks to do the same thing now, fifteen
years later.
Petitioner also ignores the prior decision of the Court which rejected Petitioner's
arguments fifteen years ago which he is now attempting to appeal again through another
procedural avenue. That decision was made and Petitioner never sought an appeal to a higher
Court then. It is respectfully submitted that even if the Court does not believe that this matter is
woefully untimely and that the Petitioner is not guilty of laches, then res judicata and collateral
estoppel should apply. Petitioner cannot challenge a ZBA determination from fifteen years ago
and all of the Court decisions by trying to file an appeal seeking a determination now.
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Interestingly, even though Petitioner is attempting to stop the construction, he has failed to add a
necessary party to these proceedings since any determination may affect the rights of Canisius
High School to which a permit was granted. The failure to include a necessary party also
warrants a dismissal of this action. Surely, Petitioner cannot argue that he was unaware of the
involvement of the school since not only has he sued them multiple times in the past, but he also
challenges what the school has done as related to this action.
The Petition also fails because the time to challenge what is in essence a challenge with
respect to the use of the property by the school and whether an extension of the use which was
granted so long ago can be further extended in this case has also long passed. Petitioner was
aware of all of the proceedings dating back into 2021 when he first challenged the Canisius
project, but never sought an interpretation about the extension of the use of the property for over
eighteen (18) months. Nothing was filed in that regard seeking a determination by the Zoning
Board of Appeals at any time in 2021, even when the first site plan was approved, or 2022 when
the review was taking place before the Planning Board. It was not until August of 2022 and
well after the presentations were made that, for the first time since the first litigation fifteen
years ago that Petitioner raised the issue about the property's use. He knew about it and did
nothing until after his request for a TRO was denied.
Petitioner also glosses over the language under the law which refers to an "aggrieved
party"
as a result of the determination of the Code Enforcement Officer. Simply put, he is not
an aggrieved party since he is neither an abutting or adjoining property owner nor a party on
whose property a decision has been made. Instead, Petitioner asserts that because he lives in the
Town of West Seneca, he has standing to challenge anything. While that argument has been
accepted with respect to the SEQR determination and the Planning Board process, this is a
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different administrative proceeding where Petitioner seeks an interpretation of the decision of
the Code Enforcement Officer on land neither owned by Petitioner nor contiguous thereto. The
Court of Appeals has addressed this issue in Sun-Brite Car Wash, Inc. v. Bd. of Zoning &
Appeals of Town of N. Hempstead, 69 N.Y.2d 406, 508 N.E.2d 130 (1987) and rejected the right
of just anyone to go to the ZBA. "A property holder in nearby proximity to premises that are
the subject of a zoning determination may have standing to seek judicial review without
pleading and proving special damage, because adverse effect or aggrievement can be inferred
proximity."
from the Ibid at 409-10. What constitutes proximity, however, is another matter.
The Court of Appeals has suggested that it is five hundred (500) feet, not the approximately
2500'
distance that applies to Petitioner's residence. "Petitioner, for example, may be so far
from the subject property that the effect of the proposed change is no different from that
suffered by the public generally (cf., Brechner v. Incorporated Vil. of Lake Success, 23 Misc.2d
159, 161, 201 N.Y.S.2d 254 [Meyer, J.]; 3 Rathkopf, op. cit. § 43.04; ALI Model Land
Development Code §§ 9-103, 9-104 [Proposed Official Draft 1975] [property owner within
500 feet has standing].
Simply, Petitioner is not within the zone of interest for this challenge thereby negating
party."
that he is an "aggrieved Challenges to zoning determinations may only be made by
"aggrieved"
persons (see, Town Law § 267[7]; Little Joseph Realty v. Town of Babylon, 41
N.Y.2d 738, 741, 395 N.Y.S.2d 428, 363 N.E.2d 1163; 3 Rathkopf, Zoning and Planning §
43.01).
Of course, this is not even a zoning determination at this point since the ZBA has not
recently addressed anything with respect to the property owned by Canisius. Trying to paint a
zebra to remove the stripes does not make it any less a zebra, yet that is what Petitioner is trying
7 of 9
to do by challenging the Canisius project in another way after previously being unsuccessful in
Court with respect to the same project.
One other matter must be addressed at this point and that deals with the request for costs
and sanctions against Petitioner for this latest attempt to bring an end to the Canisius project.
While normally such other matter would not be relevant for purposes of these proceedings,
Petitioner has asked for costs and disbursements be awarded to him in this action. The Town
believes that Petitioner's actions warrant a finding that he has engaged in frivolous litigation
thus warranting the issuance of sanctions against Petitioner especially since it is clear that the
Town has undertaken the proper project review. While it is conceded that Petitioner is not
admitted to practice law in this state and thus more latitude is granted pro se plaintiffs, we are
herein dealing with a claim against a municipal corporation and funds being expended that
come from the taxpayers that are being used to defend claims that, like the other pending case,
have no basis in fact or law and lack the presentation of any supporting evidence. Petitioner is
well acquainted with litigation having sued virtually every form of government at the local,
County, State, and Federal level. He is a litigation machine that seeks to have municipal funds
expended in the defense of cases even where he has no standing to pursue them. It is
respectfully submitted that he sues for the sake of the notoriety and almost as a hobby. This is
his fourth action against the Town with respect to this project. In spite of the prior Court
decisions, he continues to file suit after suit and motion after motion against the Town in an
effort to stop the Canisius project. Once his motion for a default was denied, his TRO not
granted (twice), his request for an injunction denied, and the motion dismissing the action
granted, he should have withdrawn this proceeding, but he continues on, not even advising this
Court of the prior related proceedings and their results. It is respectfully submitted that if those
actions had been done by counsel, it would have resulted in sanctions and costs. What will
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happen next if this is not finally put to an end? Will there be another lawsuit if an inspection is
not held or not conducted in a manner that Petitioner believes it should be done? If a Certificate
of Occupancy is issued, will we be defending another actions seeking an interpretation of
whether it should have been granted under some skewed vision of the facts and law.
There is no legal basis for this Petition and the Court is respectfully urged to dismiss the
Petition in its entirety for the reasons set forth above.
WHEREFORE, your affirmant respectfully requests that this matter be dismissed and
that the request for costs and sanctions be granted together with such other and further relief as
the Court may deem just and proper.
Date: October 26.2022
Chris .
9 of 9
EXHIBIT
A
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COUNTY OF ERIE
DANIEL T. WARREN,
Petitioner AFFIDAVIT
-against- 810913/2022

TOWN OF WEST SENECA, NEW YORK
Respondent
Jeffrey Scheiber, being duly sworn, deposes and says that:
He is the Code Enforcement Officer for the Town of West Seneca and has been so
employed by the Town in that capacity since 2018. He was originally hired by the Town of
West Seneca in 2011. By reason of his association with this matter, he is fully familiar with the
facts and circumstances contained herein. This affidavit is made in opposition to the Petition
filed by Petitioner and in support of the cross-motion to dismiss the Petition.
Rather than reiterate the procedural history of the Canisius project, the Court's attention
is respectfully directed to the accompanying affidavit of the Attorney for the Town of West
Seneca which accurately describes how the parties got to this point. For the record, however,
your deponent did contact the Attorney for the Town and sought out a legal opinion with respect
to the acceptance of the request for a review and interpretation by the Zoning Board of Appeals
and thereafter relied upon the advise of counsel with respect to rejecting the request as improper
since the Petitioner was not an aggrieved individual as that term is defined. Furthermore, while
the issuance of the permit was undertaken, what is actually challenged as set forth in the
being
1 of 4
basis for the application for an interpretation is an appeal of the use of the Canisius.
property by
Such an action is not permitted under the Code of the Town of West Seneca which states
clearly
that "there shall be no rehearing of an appeal or application by the Board of Appeals, except in
Law."
accordance with Subsection 6, Section 267, Article 16 of the Town That would require
the filing of legal proceedings the initial detennination of the ZBA on the issue of
challenging
the educational use of the property by Canisius which is why the request for an interpretation
was filed. While Petitioner will attempt to argue that he is simply seeking an interpretation of
the right of this office to issue a construction permit to Canisius, that ministerial act is not the
true basis for the Petition. Rather, as stated by the Petitioner, he once again seeks to argue that
the use of the property is really for recreational purposes not educational purposes, an issue that
was decided long ago by both the Town of West Seneca and the Courts in New York. He is
attempting to avoid the prior determinations by seeking another interpretation related to the
same use.
There was no "order, requirement, decision or determination administrative

by any
official"
of the Town, but rather, Petitioner seeks to effectively appeal to an administrative
entity the determination of the Court that dismissed the initial Petition. The proper method is to
file an appeal with the Appellate Division, not create a challenge through the local
administrative board. Once the Court refused to grant a Temporary Restraining Order thereby
allowing the project to continue, the issuance of a permit to do so was simply a ministerial act
on the part of this office consistent with the decisions of the Court. There were no pending
procedures before any administrative entities in the Town at that point. The SEQR
determination had been made; the Site Plan approved; and all Town Board actions completed.
The ZBA determination from fifteen years ago was also never revisited by the ZBA as part of
2 of 4
the continuation of the initial decision and no request for same was ever made. What this is is
the Petitioner trying to find another way to stop or delay the project after having a Court reject
his arguments.
party"
It must also be noted that the Petitioner cannot be considered an "aggrieved
entitled to a review of an interpretation of the zoning code. By his own admission in one of the
prior actions involving this project, Warren v. The Board of the Town of West Seneca,
Planning
Index No. 809040/2021, Petitioner alleged that he had standing to challenge the actions of the
Town because he lived "at 836 Indian Church Road, West Seneca, State of New York.
Petitioner Warren's property is located approximately 680 feet outside of the 100 year flood
within."
plain of which the subject parcel is located (Docket No. 1, paragraph 3). He went on to
state that "the Subject Parcel is approximately 2530 feet from the property owned by Petitioner
Warren."
(Docket No. 2, Paragraph 10). Therefore, it is clear that Petitioner's property is not
contiguous to the Canisius land. In fact, Petitioner's property is located well south and across
the Buffalo Creek that separates the Canisius project from Petitioner's property. Simply put, to
seek an interpretation by the ZBA, since he is not an abutting landowner or someone who was
affected by the actions of this office which means a denial of a permit based upon a setback
requirement, height issue, etc., Petitioner lacks standing to seek an interpretation. It must be
remembered that what Petitioner seeks is an interpretation of the use of the land by Canisius,
which is not a party to this action. That interpretation was made fifteen (15) years ago.
Based upon the forgoing, it is respectfully urged that the Court deny the petition and
dismiss the action.
3 of 4
WHEREFORE, your deponent respectfully urges that the Court dismiss the Petition in its
entirety together with such other and further relief as may be deemed just and proper.
Date: October 27, 2022
Jeffre S h i r
Subscribed and sworn before me on

27th
the day of October, 2022.
Notary blic, State of New York
MARGARET A. MARTIN
Lic. # 01MA6318702
N Public, State of New York
alified in Erie County
Commission Expires February 2, 20
4 of 4
1 of 2
2 of 2

SUPREME COURT :
AFFIDAVIT OF
For a Judgment Pursuant to CPLR Article 78, : DANIEL T. WARREN IN OPPOSITION
TO RESPONDENT'S MOTION TO
Daniel T. Warren :
DISMISS AND IN FURTHER SUPPORT
OF THE VERIFIED PETITION
Petitioner, :
Against
Index # 810913/2022
West Seneca. :
Hon. Dennis E. Ward
Respondent :
. IAS Assigned Justice
.
Daniel T. Warren, being duly sworn, deposes and says:
1. I am the petitioner in this proceeding, and I submit this affidavit in further support of the
Verified Petition and in opposition to Respondent's motion to dismiss. The following is based
on my personal knowledge except those stated upon information and belief and as to those
matters, I verily believe such is true.
2. Respondent's argument for dismissal of this proceeding and for sanctions are meritless.
3. First, my standing or alleged lack thereof to appeal to the West Seneca Zoning Board of
Appeals should not be decided by this Court, Respondent or Respondent's Counsel because
under the doctrine of primary jurisdiction that is a question for the West Seneca Zoning Board
of Appeals to address.
4. Second, whether or not the building permit is an appealable order to within the jurisdiction of
the West Seneca Zoning Board of Appeals should not be decided by this Court, Respondent or
Respondent's Counsel because under the doctrine of primary jurisdiction that is a question for
the West Seneca Zoning Board of Appeals to address.
5. In addition to its appellate jurisdiction over the decisions of the enforcement official, a Zoning
Board of Appeals also has original jurisdiction to grant variances when a strict application of
1 of 4
the zoning ordinance results in practical difficulty or unnecessarf hardship to an individual
property owner. As a corollary to the authority to both grant variances and to review the
determinations of the enforcement official, a Zoning Board of Appeals also has the primary
jurisdiction of interpreting the applicable zoning ordinance (see, Thurman v. Holahan, 123
AD2d 687; Van Deusen v. Jackson, 35 AD2d 58, affd 28 NY2d 608; Matter of Cohalan v.
Schermerhorn, 77 Misc 2d 23; Daly v. Eagan, 77 Misc 2d 279).
6. "The issue of conformity with zoning regulations is within the primary jurisdiction of the Town
Board"
Zoning (Thurman v Holahan, 123 AD2d 687, 688 [1986]; see Matter of Gershowitz v
Planning Bd. of Town of Brookhaven, 52 NY2d 763, 765 [1980]; Matter of J & R Esposito
Bldrs. v Coffman, 183 AD2d 828, 828-829 [1992]).
7. A true copy of the Verified Petition in the proceeding entitled Donald Grasso, David
Monolopolus, and Daniel T. Warren, Petitioners, Against Town of West Seneca, Zoning Board
of Appeals of the Town of West Seneca, Town of West Seneca Building Department, William
Czuprynski as the Code Enforcement Officer of the Town of West Seneca and Canisius High
School a/k/a The Canisius High School of Buffalo, New York, James P. Higgins, S.J. as
President of Canisius High School, Respondents, Supreme Court of the State of New York,
County of Erie, Index #2007-7685 (Hereinafter referred to as Warren, et al v. Canisius, et al) is
attached hereto and marked as Exhibit "1".
8. A true copy of the Answer of Respondent Canisius in Warren, et al v. Canisius, et al, is
attached hereto and marked as Exhibit "2".
9. A true copy of the Answer of Respondent Town of West Seneca in Warren, et al v. Canisius, et
al, is attached hereto and marked as Exhibit "3".
10. A true copy of the Memorandum and Order of the App.ellate Division, Fourth Department
2 of 4
affinning the trial court decision in Warren, et al v. Canisius, et al, is attached hereto and
marked as Exhibit "4".
11. A true copy of Justice Siwek's Order and Judgment is attached hereto and marked as Exhibit
"5".
12. Respondents are barred from litigating the issue of my standing by the doctrines of res judicata,
collateral estoppel and/or law of the case.
13. Respondents are barred from litigating the issue of whether a building permit is appealable to
the West Seneca Zoning Board of Appeals by the doctrines of res judicata, collateral estoppel
and/or law of the case.
14. Deponent has never been sanctioned for frivolous conduct in this or any other Court.
15. Deponent has never been the subject of a motion seeking sanctions for frivolous conduct in this
or any other Court.
16. On the other hand, Counsel for Respondent has repeatedly asserted in this and other
proceedings that I lack standing despite the above prior Court Orders.
17. Respondent's Counsel does not advance any argument why this claim of lack of standing
should be decided any other way than it has been decided previously.
18. Raising this claim of lack of standing is frivolous as defined in 22 NYCRR Part 130-1 in that it
is completely without merit in law and cannot be supported by a reasonable argument for an
extension, modification or reversal of existing law, and it is undertaken primarily to delay or
prolong the resolution of the litigation, or to harass or maliciously injure another.
19. Also, Respondents requests for costs or sanctions is without merit and frivolous conduct "shall
section."
include the making of a frivolous motion for costs or sanctions under this
20. For these reasons the Petition should be granted in it entirety and Respondent's motion to
3 of 4
dismiss should be denied.
Daniel T. Warren
ay of October, 2022
of PAeu8f Deeds
omm ssioner of Deeds
In and for Erie County, New York
odd CERTIFICATION
My Commission Expires:12/31/
I, DANIEL T. WARREN., as Petitioner, pro se, hereby certify the following:
Pursuant to Uniform Rule 202.8-b, the above Reply Affidavit is 835 words, excluding the caption,
table of contents, table of authorities, and signature block. I further certify the foregoing complies with
the 4,200-word limit for reply affidavits set forth in Uniform Rule 202.8-b.
DATED: October 28, 2022

Yours, etc.
Daniel T. Warren
Plaintiff, Pro Se
716-288-6724
4 of 4
Exhibit “1”

SUPREME COURT :
: Index #
Q ()()~7 ¶(9 Kf . .
:
For a Jutlgment Pursuant to CPLR Article 78 : VERIFIED PETITION
annulling and setting aside a determination by :

Respondents to issue, and affirming the :
µ y L E u
issuance of, a building permit, :
ACTIONS &
: PROCEDigg
Donald Grasso, David Monolopolus, and :
Daniel T. Warren : Aljo 08 my
Petitioners, :
Against
ERIE COUNTY
CLERK'S OFFICE
Town of West Seneca, Zoning Board of
Appeals of the Town of West Seneca, Town of:
West Seneca Building Department, William :
Czuprynski as the Code Enforcement Officer :
of the Town of West Seneca and Canisius :
High School a/k/a The Canisius High School :
of Buffalo, New York, James P. Higgins, S.J. :
as President of Canisius High School :
Respondents :
Petitioners herein allege:
1. This is an action brought pursuant to Articles 30 & 78 of the CPLR, seeking a judgment:
Declaring that the intended principal use of the Subject Parcel is not for a private, nonprofit
elementary or secondary school accredited by the New York State Department of Education;
and Declaring that the intended principal use of the Subject Parcel is for an athletic field;
and Declaring that an athletic field is not a permitted use under West Seneca Town Code §
120-17; and Declaring that an athletic field is not a proper accessory use under West Seneca
Town Code § 120-17 when it is not incidental to a principal permitted use under West
Seneca Town Code § 120-17; and Declaring that when an athletic field is the principal
intended use it may only be on property zoned C-1 if it is enclosed in a building under West
Seneca Town Code § 120-19 or C-2 if it is not enclosed in a building under West Seneca
Town Code § 120-19 or alternatively it is not a permitted principal use on any property and
is not permitted as a principal use on any property in the Town of West Seneca until the
1Vest Seneca Town Code is amended to include this as a permitted use in an appropriate
zoning district pursuant to West Seneca Town Code § 120-5(C); and Reversing, annulling,
and setting aside the August 3, 2007 decision of Zoning Board of Appeals of the Town of
West Seneca regarding the issuance of a building permit to build an equipment room 56 ft
wide by 56 foot long for Canisius High School and Bleachers 25 ft wide by 102 ft long for
grandstand (2 permits) on the property of 2448-2869 Clinton Street in the Town of West
Seneca as a result of an error in law, arbitrary and capricious, an abuse of discretion and not
supported by substantial evidence and is improper in that it is in violation of West Seneca
Town Code § 120-58(G); and Declaring that the issuance of the subject building permit by
the Respondents on March 26, 2007, is null and void, and directing that such building permit
be rescinded and a stop work order issued for any work commenced pursuant to the subject
building permit; and Reversing, annulling, and setting aside the September 26, 2006,
Negative Declaration of the West Senenca Building Department, a result of an error in law,
arbitrary and capricious, an abuse of discretion and not supported by substantial evidence as
it was adopted in contravention of the procedural and substantive requirements of the State
Environmental Quality Review Act ("SEQRA"); and Directing Respondents to issue a
Positive Declaration that the project may have a significant detrimental environmental effect
and to proceed with the preparation of an Environmental Impact Statement ("EIS"); and
Preliminarily and permanently enjoining any and all land clearing, vegetation removal,
bulldozing, grading, construction or issuance of grading or buildmg pernuts, or any fundmg
approval, or any other action with respect to the Subject Parcel until the State Environmental
Quality Review Act has been fully complied with; and Granting petitioners costs and
disbursements of this action together with such other relief as the court deems proper.
2. Petitioner, Donald Grasso, is a natural person, residing at 64 Lexington Green, West Seneca,
State of New York, and is the owner of the real property thereat. Petitioner Grasso's
property is located within a 100 year floodplain of which the subject parcel is located within.
3. Petitioner, David Monolopolus, is a natural person, residing at.97 Lexington Green, West .
Seneca, State of New York, and is the owners of real property thereat. Petitioner
Monolopolus'
property is located within a 100 year floodplain of which the subject parcel is
located within.
4. Petitioner, Daniel T. Warren, is a natural person, residing at 836 Indian Church Road, West
Seneca, State of New York, and is the owners of real property at 832 Indian Church Road,
West Seneca, State of New York. Petitioner Warren's property is located approximately .
..
680 feet outside of the 100 year flood plain of which the subject parcel is located within.
5. Petitioner, David Monolopolus., is a natural person, residing at 97 Lexington Green, West
Seneca, State of New York, and is the owner of the real property thereat.
6. Petitioners are taxpayers in the Town of West Seneca, County of Erie and State of New
York and own property in the Town of West Seneca, County of Erie, State of New York and
pay New York State Income Taxes, Town and County property taxes on property with an
assessed value of more than $1,000.00 and sales taxes on all purchases made within the
State of New York.
7. Petitioners are registered voters in the Town of West Seneca, County of Erie and State of
New York
8. Respondent Zoning Board of Appeals of the Town of West Seneca constitutes and acts as
the Board of Appeals of the Town of West Seneca pursuant to the pUovisions of the Zoning
Ordinance of the Town of West Seneca.
9. kespondent Town of West Seneca is a municipality located in Erie County, New YoUk.
10. Respondent Town of West Seneca Building Department is an instrumentality of the
Respondent Town of West Seneca.
11. Respondent William Czuprynski is the duly appointed Code Enforcement Officer of the
Town of West Seneca
12. Respondent Canisius High School a/lda The Canisius High School of Buffalo, New York
and James P. Higgins, S.J. as its President (hereinafter "canisius") is the owner of the
Subject Parcel.
13. Respondent Canisius has a principal place of business located at 1180 Delaware Ave., in the
City of Buffalo, County of Erie and State of New York.
14. The Subject Parcel is approximately 250 feet from the property owned by Petitioner
.
Monolopolus.
15. The Subject Parcel is approximately 600 feet from the property owned by Petitioner Grasso.
16. The Subject Parcel is approximately 2530 feet from the property owned by Petitioner
Warren.
17. The Subject Parcel is within a few feet of federal wetlands at the nearest point and
approximately 897 feet of them at its farthest point.
18. A substantial portion of the Subject Parcel is also located within the same 100 year
Monolopolus'
floodplain that Petitioners Grasso and property is located in and that
Petitioner Warren's property is just outside of.
19. Petitioner Warren's property used to become marshy and swamp-like during periods of rain
and for some time after the rain subsided.
20. Petitioner Warren has planted willow bushes in his yard to help alleviate this water
nondition and must maintain a sump-pit and sump-pump in his basement to prevent and
control the water around his basement.
21. Petitioner Warren believes that if this project is permitted to go forward the changes in
ground water quantity and quality together with the erosion and changes in stormwater
runoff patterns will negatively impact the environment on his property and he will be
compelled to expend money to install other drainage systems and methods to protect his
environment and property.
22. Petitioners are concerned about the increased risks and effects an athletic facility as
proposed in this project will have on them and their environment which includes, but is not
limited to: the blight that such a facility may cause them to be exposed to, exposure to, and
the increased risk of being a victim of crime that will emanate from such a facility, the lack
of parking and the increase in traffic and its attendant risks, air pollution, water pollution,
changes in the quantity and quality of the groundwater, the effect upon the nearby federal
wetlands due to erosion and runoff caused by the development and facility as planned, and
noise as well as other negative environmental, health and social consequences that are
attendant by the proposed development and use of the subject lands and the adverse impact
on the continued use and enjoyment of their homes. Petitioners are also concerned of the
affect that such environmental changes will have on the value of their respective properties.
Petitioners have expended sums of money to mitigate the effect of the groundwater has on
their respective homes and if there are material changes in the groundwater will be
compelled to expend money to make adjustments to their property to account for such
change in the groundwater due to this project, if such adjustments are at all possible. They
also are concerned about the integrity of the laws of the United States and the State of New
tork and wishes to assure those laws are carried out.
23. The Subject Parcel is bordered by Cayuga Creek which flows into Buffalo Creek which in
turn flows into Lake Erie which is a navigable water as that term is defined in Navigation
Law § 2(4) and is navigable waters of the United States as that term is defined by the Clean
Water Act and the regulations promulgated thereunder.
24. Petitioners herein attended various meetings and voiced concerns over the environmental
impact of such a project on the surrounding area as well as submitted writings voicing their
"A"
concerns. Attached hereto and marked as Exhibit is a copy of the minutes of the West
Seneca Town Board of September and October 2005 as posted on the official website of the
Town of West Seneca.
25. Respondent Canisius on or about August 16, 2005 represented to the NYS Department of
State, Division of Code Enforcement and Administration that the applicable code that the
Subject Parcel was subject to was for business and storage nòt educational or residential.
Upon information and belief Respondent Canisius does not intend to erect a school on this
site or use it for educational instruction or as part of its state mandated physical education
program, rather it is intended solely to be used for extramural activities of its students and
students of other private schools. Upon information and belief if Respondent Canisius
represented to the NYS Department of State, Division of Code Enforcement that the subject
parcels were to be used for educational purposes the variance may not have been granted or
Respondent would have been required to make other accommodations in order to obtain a
"B" Canisiuis'
variance. Attached hereto and marked as Exhibit is a copy of the Respondent
application to the NYS Department of State, Division of Code Enforcement and
Administration dated August 15, 2005.
"C"
26. Attached hereto and marked as Exhibit is a copy of a letter sent to the Town
Respondents from Petitioner Grasso on December 12, 2005.
27. In or about August 2005, Respondent Canisuis completed a full Environmental Assessment
Form (hereinafter "EAF") with respect to said Project, and presented the same to the Town
"D"
Respondents for review. Attached hereto and marked as Exhibit is a true copy of Part
1 of this EAF Form.
28. Thereafter Town Respondents declared itself lead agency for purposes of the State .
Environmental Quality Review Act, Article 8 of the New York State Environmental
Conservation Law.
29. In or about June 28, 2006, Respondent Canisuis, submitted to the Town Respondents a
supplement to Part I of the EAF for consideration with respect to the above-described
project to be located on Clinton Street in the Town of West Seneca. Attached hereto and
"E"
marked as Exhibit is a copy of this submission.
30. The Town Respondents, in or about September 26, 2006, received and reviewed said EAF
submitted by Respondent Canisius, and determined that a negative declaration will be issued
and would not be reviewed pursuant to the State Environmental Quality Review Act, and the
"F"
rules and regulations promulgated thereunder. Attached hereto and marked as Exhibit is
a copy of this determination.
31. On or about April 4, 2007 notice was published in the NYS Department of Enƒonmental
Conservation's Environmental News Bulleting that Respondent Town of West Seneca
Building Department, issued a negative declaration relative to this project on the Subject
"G"
Parcel. A copy of this notice is attached hereto and marked as Exhibit
32. Respondents issued said Negative Declaration despite the environmental concerns voiced by
Petitioners herein in writing and at various meetings. Petitioners specifically raised
environmental concerns but not limited of the-project of the above-

including, to, the effect
ground septic systems, the effect of tree and vegetation clearance, and the aesthetic effect
the project would have on their properties and neighborhood.
33. On or about April 23, 2007 at a meeting of the West Seneca Town Board Petitioners were
notified that a building permit was issued for the Subject Parcel and project. Attached
"H"
hereto and marked as Exhibit is a true copy of the minutes of the April 23, 2007
meeting of the West Seneca Town Board.
34. A copy of the permit issued is attached hereto and marked as Exhibit "I
.
35. Petitioner Warren made a demand for the enforcement of the Town of West Seneca's zoning
ordinances against the use of the Subject Parcel by Respondent Canisius and requested
reconsideration of the negative declaration issued by Respondents on August 3, 2007.
36. Petitioners timely appealed the issuance of the permit to the Respondent Zoning Board of
Appeals of the Towri of West Seneca and on or about August 3, 2007 rendered a decision on
"J"
the appeal which is attached hereto and marked as Exhibit
37. Petitioners have commenced this proceeding within 30 days of the filing of the decision of
the Respondent Zoning Board of Appeals of the Town of West Seneca.
38. Notice of this proceeding is being brought by Order to Show Cause to obtain a judicial order
staying the effect of the challenged determinations pending judicial review pursuant to
Town Law §§ 276-a(6), 282 and CPLR § 7805.
39. If not preliminarily enjoined or stayed this project will cause petitioners irreparable harm in
irreversibly changing their environment and properties in a negative manner as detailed
herein.
40. retitioners have no adequate remedy at law.
41. No prior application for the relief sought herein has been made to any other court..
AS AND FOR A FIRST CAUSE OF ACTION
"1" "41"
42. Petitioners repeat and reallege each and every allegation contained in Paragraphs to
as if fully set forth herein.
3. The Subject Parcel is zoned R-100A as represented by Respondent Czuprynski at the
October 19, 2005 meeting of the West Seneca Town Board.
44. 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
listing."
more general
45. Pursuant to West Seneca Town Code § 120-5(B) "No use shall be permitted in any zoning
district."
district unless it is listed specifically or generally as a permitted use in said zoning
46. 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
govern."
provision or the one imposing the higher standard shall
47. Respondent Czuprynski represented to Petitioners at a meeting of the West Seneca Town
Board on September 19, 2005 that Respondent Canisuis High School's intended project for
the Subject Parcel was properly zoned under amusements. According to the Minutes of the
September 19, 2005 meeting of the West Seneca Town Board "Mr. Czuprynski responded
that the most common classification the project fell under was Amusements in a C-1
zoning."
(Exhibit "A").
48. At the West Seneca Town Board Meeting held on October 17, 2005 Petitioners again raised
the issue of the proper zoning necessary for the property. At this time it appears that
Respondent Czuprynski changed his position and according to the Minutes of the October
17, 2005 meeting of the West Seneca Town Board "Mr. Czuprynski advised that it was an
school."
accessory use or part of a
49. 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
building"
(except as otherwise provided) located on the same lot with such principal use or
50. In order 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 because
Respondent Canisius does not intend to build a school on the property that will be the
principal use thereof. Rather the intended principal use of the subject parcel 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 if it will not be in an
enclosed building or if it does not fall within the definition of amusement enterprise as used
in those provisions of the Town Code then it is not specifically a permitted use.
51. 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 or a use variance
obtained prior to the issuance of the subject building permit or alternatively no building
permit should be issued until the West Seneca Town Code is amended to include this as a
permitted use m an appropriate zoning district pursuant to West Seneca Town Code §
120-
5(C).
52. Upon information and belief no application by Respondent Canisius for a special use permit,
use variance or zoning change for the subject parcel has been made, considered or lawfully
granted by the Town Respondents.
53. Respondent Czuprynski acted in excess of his authority in issuing the subject building
permit because it granted a de facto use variance or zoning reclassification which is the sole
province of Respondent Zoning Board of Appeals, West Seneca Town Board or the
..
Planning Board of the Town of West Seneca upon proper application.
54. The stated description of this project is ". . . is to construct a football field and rimning track
to accommodate High School sporting events. Additional site improvements include road
access, a parking lot, concrete walkways, bleacher seating, a comfort stations, landscaping
lighting."
and site as set forth in Part 1 of the EAF (Exhibit "D").
55. According to Appendix A of Part 1 of the EAF (Exhibit "D") Respondent Canisius
described its intended facility operations as "The grounds will be utilized for team practices
and sporting events generally before and after school and on weekends. Respondent
Canisius also described the facility as "Canisius High School intends to construct a football
field and running track to accommodate sporting events and routine team practices. The
grounds will include an asphalt access road and a 275-car parking lot, landscaped areas,
concrete walkways, bleacher seating for 800 spectators, and a comfort station where
."
refreshments will be sold and restrooms located. .
56. Respondent Canisius through its duly authorized representatives and employees represented
to the State of New York in an application for a variance that the intended use of the subject
property is for business and storage use not educational or religious. Based on such
fepresentations Respondent received the administrative determination it sought granting the
variance it sought and is enjoymg the benefit obtained by such variance. Therefore
Respondent Canisius should be estopped from asserting that it intends to use this land for
any other purpose based on the doctrine of inconsistent positions. The doctrine of estoppel
may be applied in this State to estop a party in a litigation from making a factual assertion
contrary to a factual assertion made in the course of an administrative proceeding (see Tozzi
v. Long Island R.R., 170 Misc. 2d 606).
57. In completing Part 1 of the EAF form Respondent Canisius represents that the name of the
Facility"
action as "Clinton Street Athletic (Exhibit "F")
58. Even in the subject buildmg permit the purpose stated is for a storage facility and bleachers.
There is no reference to classrooms or a structure for educational purposes as a principle use
of the Subject Parcel.
Canisius'
59. Although Respondent status as a religious educational institution provides it with
special treatment based on their presumed beneficial effect on the community relative to
lowering their burden of proof in requesting special use permits, variances and zoning
changes it does not give them a complete exemption from complying with zoning laws or
any requirement to apply for such special use permits, variances and zoning changes if the
property they seek to use is not properly zoned for such intended activity.
60. In consideration of any application for such special use permits, variances and zoning
changes there is no conclusive presumption that any religious or educational use
automatically outweighs its ill effects. Rather religious and educational institutions must
accommodate to factors directly relevant to public health, safety or welfare, inclusive of fire
and similar emergency risks, and traffic conditions insofar as they involve public safety.
61. A use variance or rezoning may be required or other reasonable conditions directly related to
the public's health, safety and welfare may be imposed to the same extent that they may be
imposed on noneducational applicants.
62. Upon information and belief, the Town of West Seneca and its officers, officials, agents and
employees will, unless prohibited and restrained, will continue to aid and abet Respondent
Canisiuis in.the violation of the West Seneca Town Code and the Town Law and will
continue to permit the violation, will issue all necessary certificates and permits for the
project and will continue to permit the construction, establishment and operation of an
athletic field on the Subject Parcel.
63. The determination of Respondent Zoning Board of Appeals of the Town of West Seneca as
represented in the letter decision dated August 3, 2007, is clearly a result of an error m law,
arbitrary and capricious, an abuse of discretion and not supported by substantial evidence
and is improper in that it is in violation of West Seneca Town Code § 120-58(G).
AS AND FOR A SECOND CAUSE OF ACTION
"1" "63"
64. Petitioners repeat and reallege each and every allegation contained in Paragraphs to
as if fully set forth herein.
65. More than 20 years ago the Legislature enacted SEQRA, and by so doing formally
recognized that environmental concerns should take their proper place alongside economic
interests in the land use decision-making processes of State and local agencies ECL 8-
(see,
0103 [7]; 6 NYCRR 617.1 [d]). To insure that this laudable goal would be accomplished, the
. . Legislature created an elaborate procedural framework requiring parties to consider the
possible"
environmental ramifications of their actions "[a]s early as ( ECL 8-0109 [4]) and
possible"
to "the fullest extent ( ECL 8-0103 [6]). The mandate that agencies implement
possible"
SEQRA's procedural mechanisms to the "fullest extent reflects the Legislature's
view that the substance of SEQRA cannot be achieved without its procedure, and that
departures from SEQRA's procedural mechanisms thwart the purposes of the statute. Thus it
is clear that strict, not substantial, compliance is required.
66. Respondent issued its Negative Declaration under the State Environmental Quality Review
Act (hereinafter "SEQRA"), and the rules and regulations promulgated thereunder, in
violation of 6 N.Y.C.R.R. § 617.7 , thereby rendering the Building Permit issued by
Respondent with respect to the subject project and parcel erroneous as a matter of law, null
and void, and of no effect.
67. According to 6 N.Y.C.R.R. § 617.4(b)(6)(i) , an action is a Type I action for purposes of
SEQRA when such project or action that involves the physical alteration of 10 acres.
68. Accordingly, such subject project constitutes a Type I action for purposes of SEQRA, and
the rules and regulations promulgated thereunder.
69. A Type I action "carries with it the presumption that it is likely to have a significant adverse
statement]"
impact on the environment and may require an EIS [environmental impact (6
NYCRR 617.4 [a] [1]).
"actions"
70. All subject to SEQRA (i.e., Type I and unlisted actions) initially require the
preparation of an EAF, whose purpose is to aid an agency "in determining the environmental
actions"
significance or nonsignificance of (6 NYCRR 617.2 [m]; see also 617.6 [a] [2],
[3]). After reviewing the EAF, if the lead agency determines "that the action may include
impact,"
the potential for at least one significant adverse environmental a positive
declaration must be issued and completion of an EIS becomes necessary (6 NYCRR 617.7
[a] [1]; see also ECL 8-0109 [2]).
71. The submissions of Respondent Canisius to the Town Respondents specifically state that the
project will result in at least one significant environmental impact. These-statements include
but is not limited to, those in their supplemental submission dated June 28, 2006 (Exhibit
"E") where it is stated on page 3 item H(4) that the "proposed action will affect surface or
groundwater quality or quantity."; page 3 item II(5) that the "proposed action will use water
in excess of 20,000 gallons per day. (Note: 4,000 gallons per day of water will be used it
irrigate the playing field approximately 30 times per year)"; page 3 item II(7) that the
"proposed action will alter drainage flow or patterns or surface water runoff. The action
may cause substantial erosion. (Note: During construction, potential erosion will be
mitigated in accordance with the project Sedimentation and Erosion Control
Plan.)"Although it addresses erosion mitigation in this item it does not state how erosion
will be mitigated, if at all, on a long term basis); page 4 item III(1) that the "proposed action
will have small affect air quality."; page 4 item V(1) that the "proposed action will affect
agricultural land resources. The action would irreversibly convert more than 10 acres of
agricultural land or, if located in an Agricultural District, more than 2.5 acres of agricultural
land."; page 5 item VI that the "proposed action will affect aesthetic resources. Proposed
land uses, or project components are obviously different from or in substantial contrast.to
current surrounding land use patterns, whether man-made or natural."; page 6 item X(2)
states that the "Proposed action will cause a greater than 5% increase in the use of any form
of energy in the municipality."; page 6 item XI(1) states that there "will be objectionable
odors, noise, and vibration as a result of construction of the proposed action. The proposed
action will produce operating noise exceeding the local ambient noise levels for noise
outside of structures."; on page 7 item XIII(1) it states that the "proposed action will affect
the character of the existing community. It will cause a change in the density of land use.
use.)"
(Note: The project will convert 11 acres of vacant land into educational/recreational
72. Petitioners have raised their concerns about the environmental impact that this project will
"A"
have on them, their environment and the environment of their neighborhood (Exhibits
& "C").
Canisius'
73. Although Respondent submission of June 28, 2006 addresses some of the above
mentioned significant environmental impacts it does not address all of them, these include
but is not limited to, the above identified change in surface and ground water, drainage flow
patterns and continued erosion. Additionally what is not addressed in the submission relative
to part 2 is the increase in noise after construction is completed since it will be used as a
recreational facility for sports games. On the items that the submission and the
determination to issue a negative declaration does address it does not clearly negate the
continued potentiality of the adverse effects of the proposed action and addresses them in a
conclusory fashion, if at all.
74. Respondents failed to adequately consider the related long-term, short-term, direct, indirect
and cumulative effects of the proposed project, including the assessment of the significance
of a likely consequence in connection with its duration; its irreversibility; its geographic
and its magnitude (6 NYCRR 617.7 - see 6 NYCRR 617.7 [2]). .

scope; [c] [3] [iii] [v]; [c]
This is evidenced, in part, by the complete failure to address the long term affects of the
change in the and of surface and ground drainage flow run-

quantity quality water, patterns,
off and continued erosion as well as the effects of this project on the existing water surface
elevation of the base flood. Significantly there is a complete failure to address in what way
this will affect the federal wetlands that is in close proximity to the project and located
within the 100 year flood plain in which a substantial portion of the Subject Parcel is located
within.
75. Additionally the assessment of the environmental impact relative to traffic is deficient.
Specifically the stated use of the project is for the Subject Parcel to be "utilized for team
weekends"
practices and sporting events generally before and after school and on However,
the traffic study used in the environmental analysis was at the time 3 years old and measured
traffic for a 72 hour period during the weekday (Exhibit "D").
76. Additionally this EAF and Negative Declaration were issued based on the premise that the
dominant use of the Subject Parcel was for an athletic facility. If the Respondents have in
fact changed their intended use of.this land so that the athletic field will be incidental to a
permitted use then a new SEQRA process should be undertaken and this negative
declaration deemed null and void for purposes of evaluating the new intended purpose.
77. The Court should address the adequacy of the SEQRA process concerning this project even
if it grants petitioners relief on their first cause of action so that this negative declaration
may not be used to support the Respondents potential future application for a use variance or
rezoning for the Subject Parcel.
78. This EAF was not a product of back and forth exchange of ideas and concerns that involved
the public and Respondents failed to take adequate steps to involve interested members of
the public. .
79. Respondent herein issued its Negative Declaration with respect to the subject project on or
about September 26, 2006. A copy of the Negative Declaration, is attached hereto as Exhibit
"E"
and made a part hereof.
80. Respondents did not undertake a full EIS as required (6 NYCRR 617.7 [a] [1]; see also ECL
8-0109 [2]) by the facts of this case.
81. Town Respondents failed to adequately identify the relevant areas of environmental
concern, failed to give due consideration to the pertinent environmental factors, to take a
hard look at.them, and/or make a reasoned elaboration of their determination to issue a
negative declaration. The determination to issue a negative declaration is in violation of
lawful procedure, was affected by an error of law, was arbitrary and capricious or an abuse
of discretion.
82. The Negative Declaration issued by Respondent with respect to the subject project is
erroneous as a matter of law, null, void and of no effect.
83. Accordingly, the Building Permit issued by Respondents with respect to the subject parcel
and project is erroneous as a matter of law, null, void, and of no effect.
84. Petitioners pray that the building permit issued by Respondents with respect to the subject
parcel be vacated as such is erroneous as a matter of law, null, void and of no effect and
Reversing, annulling, and setting aside the September 26, 2006, Negative Declaration of the
West Senenca building Department, a result of an error in law, arbitrary and capricious, an
abuse of discretion and not supported by substantial evidence as it was adopted in
contravention of the procedural and substantive requirements of the State Environmental
Quality Review Act ("SEQRA").
WHEREFORE petitioners request that an order and judgment be granted: .

A. Declaring that the intended principal use of the Subject Parcel is not for a private, nonprofit
elementary or secondary school accredited by the New York State Department of Education;
and
B. Declaring that the intended principal use of the Subject Parcel is for an athletic field; and
C. that an athletic field is not a permitted use under West Seneca Town Code 120-
Declaring §
17; and
D. Declaring that an athletic field is not a proper accessory use under West Seneca Town Code
§ 120-17 when it is not incidental to a principal permitted use under West Seneca Town
Code § 120-17; and
E. Declaring that when an athletic field is the principal intended use it may onlybe on property
zoned C-1 if it is enclosed in a building under West Seneca Town Code § 120-19 or C-2 if it
is not enclosed in a building under West Seneca Town Code § 120-19 or alternative1^ it is
not a permitted principal use on any property and is not permitted as a principal use on any
property in the Town of West Seneca until the West Seneca Town Code is amended to
include this as a permitted use in an appropriate zoning district pursuant to West Seneca
Town Code § 120-5(C); and
F. Reversiiig, annulling, and setting aside the August 3, 2007 decision of Zoning Board of
Appeals of the Town of West Seneca regarding the issuance of a building permit to build an
equipment room 56 ft wide by 56 foot long for Canisius High School and Bleachers 25 ft
wide by 102 ft long for grandstand (2 permits) on the property of 2448-2869 Clinton Street
in the Town of West Seneca as a result of an error in law, arbitrary and capricious, an abuse
of discretion and not supported by substantial evidence and is improper in that it is in
violation of West Seneca Town Code § 120-58(G); and
G. Declaring that the issuance of the subject building permit by the Respondents on March 26,
2007, is null and void, and directing that such building permit be rescinded and a stop work
order issued for any work commenced pursuant to the subject building permit; and
H. Reversing, annulling, and setting aside the September 26, 2006, Negative Declaration of the
West Senenca Building Department, a result of an error in law, arbitrary and capricious, an
abuse of discretion and not supported by substantial evidence as it was adopted in
contravention of the procedural and substantive requirements of the State Environmental
Quality Review Act ("SEQRA"); and
I. Directing Respondents to issue a Positive Declaration that the project may have a significant
detrimental environmental effect and to proceed with the preparation of an Environmental
Impact Statement ("EIS"); and
J. Preliminarily and permanently enjoining any and all land clearing, vegetation removal,
bulldozing, grading, construction or issuance of grading or building permits, or any funding
approval, or any other action with respect to the Subject Parcel until the State Environmental
Quality Review Act has been fully complied with; and
K. Granting petitioners costs and disbursements of this action together with such other relief as
the court deems proper.
State of New York )

County of Erie ) ss:
City of Buffalo )
I Daniel T. Warren, am one of the Petitioners 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.
Danief . Warren
Ît_ day of August, 2007
Notary Public
thonnes P. B si
State of New York
O2ET 27726
Commission July 2011

Exhibit “2”
STATE OF NEW YORK

SUPREME COURT : COUNTY ÓF ERIE
For a judgment Pursuant to CPLR Article 78
annulling and setting aside a determination by

Respondents to issue, and affirming the
issuance of, a building permit,
DONALD GROSSO, DAVID MONOLOPOLUS, and

DANIEL T. WARREN,
Petitioners,
against Index No. 2007-7685

ANSWER
TOWN OF WEST SENECA, ZONING BOARD OF

APPEALS OF THE TOWN OF WEST SENECA,
TOWN OF WEST SENECA BUILDING DEPARTMENT,
WILLIAM CZUPRYNSKI as the Code Enforcement Officer
of the Town of West Seneca, and CANISIUS HIGH SCHOOL
a/k/a/ THE CANIS1US HIGH SCHOOL OF BUFFALO, NEW YORK,
JAMES P. HIGGINS, S.J. as President of Canisius High School,
Respondents.
Respondents Canisius High School a/k/a The Canisius High School of Buffalo and James
P. Higgins, S.J., as President of Canisius High School, by their attorneys, Harris Beach PLLC,
for their Answer to the Petition:
1. Neither admit nor deny the allegations contained in Paragraph 1 and state that
those allegations speak for themselves.
2. Deny knowledge or information sufficient to form a belief as to the allegations
contained in Paragraphs 2, 3, 4, 5, 6, 7, 10, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 26, 33, 35, 37,
41, 48, and 72.
HARRIS BEACH E
ATTORNEYS
ATLAW
3. Admit the allegations contained in Paragraphs 8, 9, 11, 12, 13, 27, 28, 29, 30, 31,
34, 43, 44, 45, 46, 49, 52, 54, 55, 57, and 79.
4. State that with regard to the allegations contained in Paragraphs 65, 67, 69, and 70
the provisions of the State Environmental Quality Review Act and the Regulations promulgated
by the Department of Environmental Conservation speak for themselves.
5. State that with regard to the allegations contained in Paragraph 36 they are
without knowledge or information sufficient to form a belief as to the allegation that Petitioners
timely appealed the issuance of a Building Permit and admit the remaining allegations of that
Paragraph.
6. Deny the allegations contained in Paragraphs 23, 25, 32, 38, 39, 40, 47, 50, 51,
53, 56, 58, 59, 60, 61, 62, 63, 66, 68, 71, 73, 74, 75, 76, 77, 78, 80, 81, 82, 83, and 84.
7. Deny knowledge or information sufficient to form a belief as to the allegation in
Paragraph 48 that the Petitioners raised the issue of proper zoning before the West Seneca Town
Board and deny the remaining allegations contained in that Paragraph.
FIRST OBJECTION IN POINT OF LAW
8. The Petitioners lack standing to maintain this Proceeding.
SECOND OBJECTION IN POINT OF LAW
9. The Decision of the Respondent Zoning Board of Appeals has a rational basis and
is consistent with the provisions of the Town of West Seneca Zoning Ordinance and the
decisions of the Courts of this State.
THIRD OBJECTION IN POINT OF LAW
10. The Petition fails to state a claim upon which relief can be granted.
HARRIS BEACHE 2
ATTORNEY5
ATLAW
FOURTH OBJECTION1N POINT OF LAW
11. The variance referred to in Paragraph 25 will not be utilized by the Respondent The
Canisius High School of Buffalo as a fire hydrant will be constructed on site in compliance with
the applicable codes of the State of New York.
WHEREFORE, the Answering Respondents demand that a Judgment be entered
dismissing the Petition and granting such other a further relief as to the Court may seem just and
. .... ... ...... .. . .. .... .. . . . . ................................ ....... .... . ..... .... ... .. .. ........ ....... ......
proper including the costs of this Proceeding.
Yours, etc.
HARRIS BEACH PLLC
By:
Richard T. S.ullivan
Attorneys for Respondents Canisius High
School a/k/a The Canisius High School of
Buffalo and James P. Higgins as President
of Canisius High School

726 Exchange Street, Suite 1000
(716) 200-5050
To: Daniel T. Warren, pro se

Donald Grasso, pro se

64 Lexington Green
David Monolopolus, pro se

97 Lexington Green
West Seneca, New York, 14224
HARRIS BEACHE 3
VERIFICATION
STATE OF NEW YORK )

COUNTY OF ERIE )
James P. Higgins, S.J., being duly sworn, deposes and says that he is the President of
Canisius High School, one of the Respondents herein, that he has read the foregoing Answer and
knows the contents thereof; that the same is true to the knowledge of Deponent, except as to
... . ...... .... ....... . .. .. ....... . . ......... .. . . . . . .... .. ... ...... . . .. .. . ..
those matters therein stated to be alleged upon information and belief, and that as to those
matters, he believes it to be true.
dmes P. Higgif•s, . resi
Swo to before me this

13 ay of September, 2007
Nota y Public
ftl ARBI $ll)VAN

Nolary Public, State of New York
Qualified in Erie County
My Commission Expires Aug31, 2016
HARRIS BEACH i! 4
ATTORNEYS
ATLAW
Exhibit “3”

SUPREME COURT
For a Judgment pursuant to CPLR Article 78
Annulling and setting aside a determination by

Respondents to issue, and affirming the issuance
Of a building permit,
Donald Grasso, David Monolopolus and

Daniel T. Warren ANSWER
Petitioners, Index No. 12007-7685
Hon. Diane Y. Devlin
vs
The Town of West Seneca, Zoning Board of Appeals

Of the Town of West Seneca, Town of West Seneca
Building Department, William Czuprynski as the Code

Enforcement Officer of the Town of West Seneca and
Canisius High School a/lda The Canisius High School
of Buffalo, New York, James P. Higgins, S.J. as
President of Canisius High School.
Respondents
Respondents, The Town of West Seneca, Zoning Board of Appeals of the Town
of West Seneca, Town of West Seneca Building Department, William Czuprynski as the
Code Enforcement Officer of the Town of West Seneca by their attorney, Paul Notaro,
Esq., Deputy Town Attorney for the Town of West Seneca, Answer the Petition herein:
'
1. Deny each and every allegation contained in the Petition that alleges or
tends to allege that any of the Respondents acted in any way contrary to constitutional,
statutory, regulatory or case law.
2. Deny sufficient knowledge or information to form a basis for responding
to the allegations contained in paragraphs 2, 3, 4, 5, 6, 7, 12, 13, 14, 15, 16, 18, 19, 20, 21
and 23 of the Petition.
3. Admit the allegations contained in paragraphs 9, 11, 17, 28, 29, 31, 33, 43
and 79 of the Petition.

4. - the allegations contained in paragraphs 47 and 48 as they relate to

Deny
the allowed uses without having proper application upon which determination would be
required, and admit what is contained in the Town Board Minutes.
5. The allegations contained in paragraph 72 of the Petition characterize the
Petition and do not require a response.
6. Deny the allegations contained in paragraph 36 as they relate to the timely
filing appeal of the issuance of a building permit, and admit the Zoning Board of Appeals
issued a decision to Appeal No. 2007-051 on or about August 3, 2007.
7. Deny the allegations contained in paragraph 44 and 45 as the uses allowed
under the West Seneca Town Code Section 120-5 are clearly enumerated and do not
require an interpretation by the Petitioners. (A copy of West Seneca Town Code Section
120-5 is attached hereto as Exhibit "A")
8. Deny the allegations contained in paragraph 46 as the uses allowed under
the West Seneca Town Code Section 120-10 are clearly enumerated and do not require an
interpretation by the Petitioners. (A copy of West Seneca Town Code Section 120-10 is
attached hereto as Exhibit "B")
9. Deny the allegations contained in paragraph 49 as the uses allowed under
the West Seneca Town Code Section 120-64 are clearly enumerated and do not require an
interpretation by the Petitioners. (A copy of West Seneca Town Code Section 120-10 is
attached hereto as Exhibit "C")
10. Deny Petitioners characterization in paragraphs 55, 57, 58 and 71 of the
Respondent, Canisius High School's, project as they do not fully reflect all materials
submitted to the Respondent, Town of West Seneca, upon which a determination was
made to issue a building permit.

11. Deny the allegations contained in paragraphs 65, 66, 67, 68, 69, and 70 as
the uses allowed under the New York Environmental Conservation Law and related New
York Codes, Rules and Regulations are clearly enumerated and do not require and
interpretation by the Petitioners and Respondent therefore denies and such
characterization in said paragraphs.
12. Deny the allegations contained in paragraphs 1, 8, 10, 22, 24, 25, 26, 27,
30, 32, 34, 35, 37, 38, 39, 40, 41, 42, 50, 51, 52, 53, 54, 56, 59, 60, 61, 62, 63, 64, 73, 74,
75, 76, 77, 78, 80, 81, 82, 83 and 84 of the Petition.
13. Deny each and every allegation of the Petition not specifically responded
to above.
OB JECTIONS IN POINT OF LAW
14. Respondents interpose the following objections in point of law to the
Petition:
a. The Petitioners lack standing to challenge the matters that the
Petitioners are attempting to challenge.
b. The Petitioners fail to state a cause of action.
c. The Code Enforcement Officer of the Town of West Seneca,
William Czuprynski, properly issued a building permit consistent with the Town of West
Seneca Code and the case law of New York State,
d. The Town of West Seneca Zoning Board of Appeals appropriately
upheld the determination of the Code Enforcement Officer issuing a building permit to
the Canisius High School consistent with the facts presented at a hearing on July 26,
2007, provisions of the Town of West Seneca Zoning Code and case law of the State of
New York.
WHEREFORE, Respondents, The Town of West Seneca, Zoning Board of
Appeals of the Town of West Seneca, Town of West Seneca Building Department,
William Czuprynski as the Code Enforcement Officer of the Town of West Seneca
respectfully requests this Court issue an Order:
a. Dismissing the petition and deny the relief requested therein by the
Petitioners,
J
b. Grant respondents costs and disbursements of this action,
c. 1 such as the ma eem ju

Granting other relief Court right and .

West Seneca, New York Paul Notaro, Esq.
Deputy Town Attorney

Attorney for Respondents
1250 Union Road
716-558-3240
TO: Daniel T. Warren, pro se

716-570-6070
Donald Grasso, pro se

64 Lexington Green
David Monolopolus, pro se

97 Lexington Green
Richard L Sullivan, Esq.

Harris Beach LLP
726 Exchange Street, Suite 1000
Buffalo New York 14210
716-200-5050
Exhibit “4”
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
803
CA 07-02277
PRESENT: HURLBUTT, J.P., SMITH, CENTRA, PINE, AND GORSKI, JJ.
IN THE MATTER OF DONALD GRASSO, DAVID

MONOLOPOLUS, AND DANIEL T. WARREN,
PETITIONERS-APPELLANTS,
V MEMORANDUM AND ORDER
TOWN OF WEST SENECA, ZONING BOARD OF APPEALS

OF TOWN OF WEST SENECA, TOWN OF WEST SENECA
BUILDING DEPARTMENT, WILLIAM CZUPRYNSKI, AS CODE
ENFORCEMENT OFFICER OF TOWN OF WEST SENECA, CANISIUS
HIGH SCHOOL, ALSO KNOWN AS CANISIUS HIGH SCHOOL
OF BUFFALO, NEW YORK, AND JAMES P. HIGGINS, S.J.,
AS PRESIDENT OF CANISIUS HIGH SCHOOL,
RESPONDENTS-RESPONDENTS.
(APPEAL NO. 1.)
DANIEL T. WARREN, DONALD GRASSO, AND DAVID MONOLOPOLUS, PETITIONERS-

APPELLANTS PRO SE.
CONNORS & VILARDO, LLP, BUFFALO (LAWRENCE J. VILARDO OF COUNSEL), FOR

RESPONDENTS-RESPONDENTS TOWN OF WEST SENECA, ZONING BOARD OF APPEALS
OF TOWN OF WEST SENECA, TOWN OF WEST SENECA BUILDING DEPARTMENT, AND
WILLIAM CZUPRYNSKI, AS CODE ENFORCEMENT OFFICER OF TOWN OF WEST
SENECA.
HARRIS BEACH PLLC, BUFFALO (RICHARD T. SULLIVAN OF COUNSEL), FOR

RESPONDENTS-RESPONDENTS CANISIUS HIGH SCHOOL, ALSO KNOWN AS CANISIUS
HIGH SCHOOL OF BUFFALO, NEW YORK, AND JAMES P. HIGGINS, S.J., AS
PRESIDENT OF CANISIUS HIGH SCHOOL.
Appeal from a judgment of the Supreme Court, Erie County (Diane

Y. Devlin, J.), entered October 23, 2007 in a proceeding pursuant to
CPLR article 78. The judgment dismissed the petition.
Now, upon the stipulation dismissing the petition against

respondent James P. Higgins, S.J., as president of Canisius High
School, signed by petitioners and the attorneys for respondents and
filed in the Erie County Clerk’s Office on May 1, 2009,
It is hereby ORDERED that said appeal with respect to respondent

James P. Higgins, S.J., as president of Canisius High School, is
unanimously dismissed upon stipulation and the judgment is otherwise
affirmed without costs.
NYSCEF DOC. NO. 15 -220-
-220- RECEIVED NYSCEF: 10/28/2022
803
CA 07-02277
Memorandum: Petitioners commenced this CPLR article 78

proceeding seeking, inter alia, to annul the determination of
respondent Zoning Board of Appeals of the Town of West Seneca (ZBA)
issuing a building permit for the construction of athletic facilities
to respondent Canisius High School, also known as Canisius High School
of Buffalo, New York, and respondent president thereof. They also
sought to annul the negative declaration issued pursuant to article 8
of the Environmental Conservation Law (State Environmental Quality
Review Act [SEQRA]). We note at the outset that we agree with
petitioners that Supreme Court erred in determining that it lacked
jurisdiction over petitioners Donald Grasso and David Monolopolus
based on their failure to verify the petition. Respondents are deemed
to have waived that omission inasmuch as they never raised the issue
or notified petitioners of it (see Lepkowski v State of New York, 1
NY3d 201, 210; Matter of Kocur v Erie County Water Auth., 292 AD2d
858). We further conclude, however, that the petition need not be
reinstated with respect to those petitioners because the court
properly dismissed the petition in its entirety, on the merits. The
determination of the ZBA that the proposed high school athletic
facilities constituted a permissible educational use under the Town
Code within the subject zoning district was neither unreasonable nor
irrational (see Matter of Frishman v Schmidt, 61 NY2d 823, 825; see
generally Town of Islip v Dowling Coll., 275 AD2d 366, 367). Further,
we conclude on the record before us that respondent Town of West
Seneca complied with SEQRA, i.e., it “identified the relevant areas of
environmental concern, took a ‘hard look’ at them, and made a
‘reasoned elaboration’ of the basis for its determination” (Matter of
Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417). We have
reviewed petitioners’ remaining contentions and conclude that they are
without merit.
Entered: June 5, 2009 Patricia L. Morgan

Clerk of the Court
Exhibit “5”
FILED: ERIE COUNTY CLERK 10/28/2022
06/09/2022 03:35
09:24 PM
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12/11/22, 5:49 PM Gmail - Re: 2030-36 RE: Canisius Athletic Fields - 2448 & 2885 Clinton Street
Daniel T Warren <[email protected]>
Re: 2030-36 RE: Canisius Athletic Fields - 2448 & 2885 Clinton Street
1 message
Daniel T Warren <[email protected]> Tue, Jul 19, 2022 at 2:38 PM

To: "Chris G. Trapp" <[email protected]>
Cc: Gary Dickson <[email protected]>, Jeffrey Schieber <[email protected]>, "[email protected]"
<[email protected]>, "[email protected]" <[email protected]>, "[email protected]" <[email protected]>,
"[email protected]" <[email protected]>, Amy Kobler <[email protected]>
Mr. Trapp,
I thought this would be the most economical and efficient way to handle this, otherwise I could just submit daily FOIL
requests.
Yours,
Dan Warren
On Tue, Jul 19, 2022 at 2:15 PM Chris G. Trapp <[email protected]> wrote:
With all due respect, it is not the obligation of the Town to provide you with prior knowledge of the actions of the Board
or the Building Department. The determination of whether any permits are required or to be issued rests with the
appropriate Town officials and employees and your request, while noted, is not dispositive of the matter. cgt
Chris G. Trapp, Esq.

Greco Trapp, PLLC
1700 Rand Building
14 Lafayette Square
Tel: (716) 856-5800
Fax: (716) 856-5801
*******************************************
In accordance with Internal Revenue Service Circular 230, we advise you that unless otherwise expressly stated, any discussion of a federal
tax issue in this communication or in any attachment is not intended to be used, and it cannot be used, for the purpose of federal tax penalties.
*******************************************
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you are hereby notified that any dissemination, distribution or copying of this communication is prohibited. If you have received this communication in error,
please notify us immediately by collect telephone call to the above telephone number. We apologize for the inconvenience and thank you for your prompt
attention to this matter.

https://mail.google.com/mail/u/0/?ik=fcc23ecd37&view=pt&search=all&permthid=thread-f%3A1738805894542425351%7Cmsg-a%3Ar6950181669106… 1/2
12/11/22, 5:49 PM Gmail - Re: 2030-36 RE: Canisius Athletic Fields - 2448 & 2885 Clinton Street
From: Daniel T Warren <[email protected]>

Sent: Tuesday, July 19, 2022 7:48 AM
To: Gary Dickson <[email protected]>; Jeffrey Schieber <[email protected]>
Cc: [email protected]; [email protected]; [email protected]; [email protected]; Amy Kobler
<[email protected]>; Chris G. Trapp <[email protected]>
Subject: Canisius Athletic Fields - 2448 & 2885 Clinton Street
Dear Supervisor Dickson and Code Enforcement Officer Schieber,
As you may know on July 14, 2022 the Planning Board approved the site plan for the above referenced project
(SPR2021-05). I promptly commenced a proceeding seeking judicial review of this determination and the June 9, 2022
negative SEQRA declaration (attached). I respectfully request that pending the determination of this proceeding that no
building or other permits be issued. Alternatively, I would request that I be given notice of any application for any
building or other permit for this project so that I may take appropriate action on it.
Respectfully,
Daniel Warren
836 indian Church Road
West Seneca, NY 14224
https://mail.google.com/mail/u/0/?ik=fcc23ecd37&view=pt&search=all&permthid=thread-f%3A1738805894542425351%7Cmsg-a%3Ar6950181669106… 2/2
12/11/22, 5:46 PM Gmail - Re: 808016/2022 - Daniel T Warren v. The Planning Board of the Town of West Seneca et al
Daniel T Warren <[email protected]>
Re: 808016/2022 - Daniel T Warren v. The Planning Board of the Town of West
Seneca et al
1 message
Daniel T Warren <[email protected]> Sun, Nov 27, 2022 at 9:20 AM

To: "[email protected]" <[email protected]>, "[email protected]" <[email protected]>
Cc: "J. Michael Lennon" <[email protected]>, "Chris G. Trapp" <[email protected]>
For the record the separate action referred to by Mr. Trapp when he says "Since Petitioner filed a separate action before
Justice Ward without notifying that Court of this matter which was still pending at the time of his filing of that claim on a
related matter, this office was not only trying to deal with that case ", that matter was concluded on November 3, 2022 as
demonstrated by the attached.
Yours,
Daniel Warren
On Sat, Nov 26, 2022 at 3:53 PM Chris G. Trapp <[email protected]> wrote:
For the record, we have submitted our copy of the proposed order to the Court as well. Ms. Reinhart forwarded
the transcript to our office late in the day on the tenth. Petitioner’s proposed Order contains matters either
previously decided that should have been in a separate Order (i.e., subpoena and proof of service of the
subpoena), deal with discovery matters not before the Court (e.g., Notice to Admit – which Petitioner again
conveniently ignored the response which was filed along with the objections), or include matters irrelevant for
purposes of an Order (memoranda of law, etc.). Furthermore, the last decretal paragraph does not adequately
address the status of the matter. Since Petitioner filed a separate action before Justice Ward without notifying that
Court of this matter which was still pending at the time of his filing of that claim on a related matter, this office was
not only trying to deal with that case along with other acts by Petitioner before the Town Planning Board, a minor
delay in our response was as a result of another storm in the area. Since I represent multiple school districts and
municipalities, a delay in our response occurred. It should not, however, be viewed as an agreement with what
Petitioner filed. cgt

Chris G. Trapp, Esq.
Greco Trapp, PLLC
1700 Rand Building
14 Lafayette Square
Tel: (716) 856-5800
Fax: (716) 856-5801
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12/11/22, 5:46 PM Gmail - Re: 808016/2022 - Daniel T Warren v. The Planning Board of the Town of West Seneca et al
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attention to this matter.
From: Daniel T Warren [mailto:[email protected]]

Sent: Thursday, November 17, 2022 6:32 PM
To: [email protected]; [email protected]
Cc: Chris G. Trapp <[email protected]>; J. Michael Lennon <[email protected]>
Subject: 808016/2022 - Daniel T Warren v. The Planning Board of the Town of West Seneca et al

Dear Bridget Roestel and Kelly Vacco;
Attached is my proposed Order and Judgment in the above proceeding. I have served it together with a Notice of
Settlement on November 11, 2022 (NYSCEF #123). To date I have not received any objections or counter proposals. I
have mailed a working copy to the Court on 11/12/2022 by priority mail ( 9405 5036 9930 0393 1555 08 ). Since the
tracking on this package stopped being updated I resent it on 11/16/2022 by priority mail (9405 5036 9930 0397 0313
34).
Thank you for your attention in this matter.
Yours,
Daniel Warren
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DANIEL T.

December 11, 2022

Attn: Amy Kobler, Secretary

To the Zoning Board of Appeals of the Town of West Seneca:

• Verified Petition in Warren v. Code Enforcement Officer of the Town of West

Standing principles, which are in the end matters of policy,

While something more than the interest of the public at

Matter of Marasco v Luney, 99 AD2d 492, lv denied 63 NY2d

STATE OF NEW YORK : COUNTY OF ERIE

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

costs and disbursements of this proceeding.

(CPLR §§ 504(2), 506(b), 7804(b)).

Dated: September 13, 2022

STATE OF NEW YORK : COUNTY OF ERIE

The Code Enforcement Officer of the Town of :

Petitioner, Daniel T. Warren, respectfully alleges:

Officer of the Town of West Seneca, NY.

petition as Exhibit "A".

Enforcement Officer was not available.

Officer and explained to him the grounds for my appeal.

the Town Attorney, to which Petitioner agreed.

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

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

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

Seneca Zoning Board of Appeals determine the merits of it.

the requirements of due process of law.

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

and affected by an error of law.

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

the New York Constitution.

WHEREFORE, petitioner respectfully requests judgment:

was taken to the West Seneca Zoning Board of Appeals;

costs and disbursements of this proceeding.

Dated: September 8, 2022

State of New York )

1 day of September, 2022

Notary PWlic / Cominissioner of Deeds

My Commission Expires: 12/31/-

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

HEREBY APPEAL TO THE ZONING BOARD OF APPEALS FROM THE

O A PERMIT FOR USE O A CERTIFICATE OF EXISTING USE

5. REASON FOR APPEAL.

See attached STATEMENT OF GROUNDS FOR APPEAL

Section , Subsection , Paragraph of the Zoning Ordinance, becans8

TO BE COMPLETED BY THE BUILDING INSPECTOR

2. Zoning Classification of the property concerned in this appeal

ZONING BOARD OF APPEALS

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

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

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

pursuant to a use variance.

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

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

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

woodpecker which is a species of special concern.

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