Development

Wappingers Falls suggests that even when landowner is otherwise ineligible for a variance, courts may still consider expenditures made in reliance on an invalid permit in fashioning relief. It is not clear how far that consideration can go without causing conflict with the Parkview rule.

Demolition Not an Appropriate Remedy for Zoning Violation

Village of Wappingers Falls v. Tomlins

NYLJ 8/22/11, p. 22, col. 5

AppDiv, Second Dept.

(memorandum opinion)

In an action by the village for a judgment declaring that landowner's occupancy violates the applicable zoning ordinance and directing landowner to demolish certain construction, the village appealed from Supreme Court's denial of its summary judgment motion. The Appellate Division affirmed, holding that the village had failed to show that demolition was an appropriate remedy.

On June 4, 2004, landowner obtained a permit to expand her house. The following month, the village issued a stop-work order and subsequently revoked the building permit. Whether landowner continued working in violation of the stop-work order is a matter of dispute. The village then brought this action, seeking declaratory relief, and also seeking demolition of the new construction. Supreme Court denied the village's summary judgment motion, and the village appealed.

In affirming, the court started by reciting the rule that a building permit issued in violation of zoning laws is not valid, and can be revoked even though harsh consequences may result for the landowner. But the court also held that when landowner acts in reliance on an invalid permit, the expenditures made before revocation can be considered by the municipality when it fashions a remedy. Here, the village failed to demonstrate that directing removal of the construction was an appropriate remedy, and as a result, the village was not entitled to summary judgment.

COMMENT

A landowner who expends funds in reliance on a building permit cannot claim equitable estoppel against a municipality that subsequently rescinds the permit because it was erroneously issued. Thus, in Matter of Parkview Assocs. v City of New York, 71 N.Y.2d 274, the Court of Appeals upheld the city's decision to require removal of the top 12 floors of a 31-story project, despite prior issuance of a building permit, because the zoning code prohibited construction above 19 floors. The court emphasized that if an adequate good-faith inquiry by landowner would have uncovered that the permit was issued in violation of the ordinance. By contrast, when a building permit is properly issued, but is later invalidated because of a change in the law, a landowner who makes substantial improvements in reliance on the permit acquires a “vested right” to complete construction. For instance, in Town of Orangetown v Magee, 88 N.Y.2d 41, the court reinstated the landowner's lawfully issued building permit for an industrial building after the Town Supervisor ordered the Building Inspector to revoke it, and the Town Board, responding to neighbor opposition, subsequently amended its zoning code to prohibit construction of commercial buildings.

When a landowner's invalid building permit has been revoked, a zoning board of appeals must consider good-faith expenditures made in reliance on the permit when evaluating a subsequent variance application. For instance, in Jayne Estates v Raynor, 22 N.Y.2d 714, the court invalidated denial of a variance that would have permitted construction of units started before a neighbor had obtained judicial invalidation of the building permit. After a dispute with the town over the number of units permitted on the landowner's parcel, landowner had negotiated a settlement with the town board of trustees, and had obtained a building permit that conformed to the settlement. Landowner then started construction. In response to suit by a neighbor, a court invalidated the permit because only the zoning board of appeals (ZBA), not the board of trustees, had power to settle the dispute. When landowner then sought a variance to complete construction of the units, the ZBA denied the application. The Court of Appeals, however, directed that the variance be granted because landowner would otherwise suffer unnecessary hardship.

Wappingers Falls suggests that even when landowner is otherwise ineligible for a variance, courts may still consider expenditures made in reliance on an invalid permit in fashioning relief. It is not clear how far that consideration can go without causing conflict with the Parkview rule.