NY Appellate Court Holds That Landowner is Not Entitled to a Variance To Keep An Illegal Structure on His Property Because the Village Issued the Building

This post was authored by Katherine Baurs-Krey, Jacob D. Fuchsberg Touro Law Center

Petitioner, E & S Realty, LLC, owns property in. residential district located in the Village of Sands Point. In 1989, the Village amended its zoning code and implemented a law that prohibits the use of accessory structures in a residential district for “habitable purposes.” In 2016, Petitioner applied for a building permit to renovate an accessory structure on his property. The Village issued the permit because the Village was unaware that the accessory structure was being used for habitable purposes. Petitioner performed the costly work pursuant to the issued building permit. After the work was complete, petitioner applied for a certificate of completion, but instead the Village issued denial letters, stating that the building permit was issued by mistake and that the work completed required multiple variances including a use variance “to enlarge a nonconforming use without changing it to a conforming use,” and that “the accessory structure needed, inter alia, a variance to allow it to be used as a residence.”

After the Village issued these denial letters, petitioner appealed to the Village’s Zoning Board of Appeals requested they issue the certificate of completion, or at minimum grant the variances required to maintain the structure. The Village denied petitioner’s requests, and Petitioner filed an Article 78 proceeding against the Village to review the Board’s decision. The State Supreme Court denied and dismissed the proceeding, and the Petitioner appealed.

The Court found that the Village properly denied Petitioner’s application for a certificate of completeness and for a use variance because petitioner was not using the structure for habitable purposes prior to 1989, and therefore the use was not pre-existing non-conforming. Further, the court found that “the Board’s interpretation of the Village Code’s phrase ‘used for habitable purposes’ was not arbitrary and capricious, illegal, or an abuse of discretion.”

“ ‘The doctrine of equitable estoppel is to be invoked sparingly and only under exceptional circumstances’ ” Sanchez v. Jericho Sch. Dist., 180 AD3d 828, 830, quoting Ceely v New York City Health & Hosps. Corp., 162 AD2d 492, 493. “ ‘[T]he mistaken or erroneous issuance of a permit does not estop a municipality from correcting errors, even where there are harsh results’, ” (Matter of Astoria Landing, Inc. v New York City Envtl. Control Bd., 148 AD3d 1141, 1143, quoting Matter of Westbury Laundromat, Inc. v Mammina, 62 AD3d 888, 890 [internal quotation marks omitted]) and the prior issuance of a building permit does not stop a municipality from enforcing its zoning laws. See, Matter of Parkview Assoc. v City of New York, 71 NY2d 274, 282.

The Court found that the Village was not estopped from denying Petitioner a certificate of completion or a variance because the building permit was issued by mistake for a use that violated the code. The Village is entitled to fix its mistake, as there was no proof offered by Petitioner of “fraud, deception, or other malfeasance by the Village.”

E & S Realty, LLC v Board of Appeals of the Village of Sands Point, 2022 WL 4361157 (NYAD 2 Dept. 9/21/2022)

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