NY Appellate Court Finds Building Permit was Invalid When Issued

This post was authored by Matthew Loescher, Esq.

Petitioner owned property in the Town of Oyster Bay, on which it operated a shopping center. In 2014, the petitioner received a building permit to construct additional commercial space in the parking lot of the premises, which was renewed several times. The petitioner commenced work on the project in 2017. Shortly thereafter, the Town issued a notice of violation and stop-work order, as it had determined that the petitioner’s project did not comply with off-street parking requirements. The Town’s Zoning Board of Appeals denied the petitioner’s application for a variance, and further determined that the permit did not confer any rights on the petitioner as it had been invalid when issued. The petitioner commenced this proceeding pursuant to CPLR article 78 to annul the ZBA’s determination, claiming that the decision lacked a rational basis, was arbitrary and capricious, and constituted a deprivation of vested rights. The Supreme Court granted the petition, annulled the determination, and directed the ZBA to grant the application for a parking variance.

The record reflected that, as the ZBA held, the permit issued to the petitioner was invalid, since the Town Code plainly set forth the method for calculating the nonresidential gross floor area according to which the number of required parking spaces is set. By that method, the required number of spaces here exceeded the 557 spaces planned by the petitioner. Since the permit issued to the petitioner was invalid, the court held that it could not have conferred vested rights.

As to the variance, the court found the ZBA rationally concluded that the requested variance would exacerbate already difficult traffic and parking conditions on and around the subject property, and thereby pose a risk to the health, safety, and welfare of the community which was not outweighed by the benefit to the petitioner from building the additional commercial space. Additionally, the testimony of the petitioner’s expert witness did not compel a different result, as the ZBA’s determination was supported by eyewitness testimony of actual conditions at the premises. Accordingly, the court reversed the judgment, and denied the petition.

C&B Realty #3, LLC v Van Loan, 208 AD 3d 778 (2 Dept. 8/24/2022)

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