This publish was authored by Katherine Baurs-Krey, Jacob D. Fuchsberg Touro Legislation Middle
Petitioner, E & S Realty, LLC, owns property in. residential district positioned within the Village of Sands Level. In 1989, the Village amended its zoning code and applied a regulation that prohibits the usage of accent buildings in a residential district for “liveable functions.” In 2016, Petitioner utilized for a constructing allow to renovate an adjunct construction on his property. The Village issued the allow as a result of the Village was unaware that the accent construction was getting used for liveable functions. Petitioner carried out the expensive work pursuant to the issued constructing allow. After the work was full, petitioner utilized for a certificates of completion, however as an alternative the Village issued denial letters, stating that the constructing allow was issued by mistake and that the work accomplished required a number of variances together with a use variance “to enlarge a nonconforming use with out altering it to a conforming use,” and that “the accent construction wanted, inter alia, a variance to permit it for use as a residence.”
After the Village issued these denial letters, petitioner appealed to the Village’s Zoning Board of Appeals requested they situation the certificates of completion, or at minimal grant the variances required to take care of the construction. The Village denied petitioner’s requests, and Petitioner filed an Article 78 continuing towards the Village to assessment the Board’s choice. The State Supreme Court docket denied and dismissed the continuing, and the Petitioner appealed.
The Court docket discovered that the Village correctly denied Petitioner’s utility for a certificates of completeness and for a use variance as a result of petitioner was not utilizing the construction for liveable functions previous to 1989, and subsequently the use was not pre-existing non-conforming. Additional, the court docket discovered that “the Board’s interpretation of the Village Code’s phrase ‘used for liveable functions’ was not arbitrary and capricious, unlawful, or an abuse of discretion.”
“ ‘The doctrine of equitable estoppel is to be invoked sparingly and solely beneath distinctive circumstances’ ” Sanchez v. Jericho Sch. Dist., 180 AD3d 828, 830, quoting Ceely v New York Metropolis Well being & Hosps. Corp., 162 AD2d 492, 493. “ ‘[T]he mistaken or misguided issuance of a allow doesn’t estop a municipality from correcting errors, even the place there are harsh outcomes’, ” (Matter of Astoria Touchdown, Inc. v New York Metropolis Envtl. Management 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 constructing allow doesn’t cease a municipality from implementing its zoning legal guidelines. See, Matter of Parkview Assoc. v Metropolis of New York, 71 NY2d 274, 282.
The Court docket discovered that the Village was not estopped from denying Petitioner a certificates of completion or a variance as a result of the constructing allow was issued by mistake for a use that violated the code. The Village is entitled to repair its mistake, as there was no proof supplied by Petitioner of “fraud, deception, or different malfeasance by the Village.”
E & S Realty, LLC v Board of Appeals of the Village of Sands Level, 2022 WL 4361157 (NYAD 2 Dept. 9/21/2022)