Development

In affirming, the Appellate Division first held that the four-month statute of limitations on challenges to the SEQRA determination ran from the issuance of the negative declaration because that that was the planning board's final act under SEQRA. As a result, the challenge was time-barred. The court then rejected neighbors' argument that the conditional site plan approval violate the town code's mandatory setback requirements, concluding that the town code provision cited by neighbors vested the planning board with discretion in determining whether to issue site plan approval.

No Estoppel Against Village

People v. Zgonena NYLJ 12/10/18, p. 17, col. 2 AppTerm, 9^th and 10^th Districts (memorandum opinion)

Landowner appealed from a criminal conviction based on importation of 1,840 cubic yards of rock and soil without the required permit. The Appellate Term affirmed, holding that permission granted by the village building inspector did not estop the village from enforcing its zoning code.

Landowner added the rock and fill to his residential property without any administrative review or permits. The village building inspector admitted that he had given landowner approval to bring in rocks and soil for vegetation and land grading, and the inspector also agreed he failed to issue a stop work order until the project was in its final stages, even though he was aware that the project had far exceeded the scope of what he had initially approved. The completed project, which created a 15-foot berm that encroached on neighboring properties and created surface water runoff conditions on those properties, violated village code provisions barring soil filling without prior approval by the Board of Architectural Review, and requiring a village board permit for operations to fill or grade property. When the village brought this criminal proceeding, landowner contended that the village should be estopped from prosecuting because of his reasonable reliance on the building inspector's conduct. After a non-jury trial, Justice Court convicted landowner of the violations.

In affirming, the Appellate Term rejected landowner's estoppel claim, noting that estoppel may not generally be invoked against a municipal agency when a municipality has unreasonably delayed action to enforce a violation or has issued a permit in error because a municipality cannot confer rights in contravention of the zoning laws. The court went on to hold that this case was not one where there had been fraud or affirmative misconduct by a municipal official. The court emphasized that subsequent to the initial approval, the building inspector never affirmatively represented that the village would permit the project to develop notwithstanding the violations. Hence, there were no exceptional circumstances that would warrant application of an estoppel defense.

Denial of Area Variance

Matter of Schwartz v. Larocca NYLJ 12/26/18, p. 31, col. 1 AppDiv, Second Dept. (memorandum opinion)

In landowner's article 78 challenge to denial of area variances, landowner appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the Board of Zoning Appeals had weighed the relevant factors, and had rationally concluded that any hardship was self-created because landowner had built structures without obtaining a building permit.

In 2011, landowner applied for a building permit to legalize 12 nonconforming structures on his residential parcel. The building inspector denied the applications because the structures violated the village's front yard and side-yard setback rules. Landowner then applied for area variances. The board granted area variances for eight of the structures, including a brick patio and trellis, a brickshed, and a second-floor balcony. The court denied variances for two gazebos, a wood platform, and another brick patio. The board concluded that the requested variances would be a detriment to nearby properties and would produce an undesirable change in neighborhood character. Landowner then brought this article 78 proceeding, and Supreme Court denied the petition.

In affirming, the Appellate Division started by noting the broad discretion zoning boards enjoy in considering area variance applications. In this case, the board rationally concluded that the four structures would require significant deviation from the zoning law. The court also noted that landowner had feasible alternatives for increasing living space that did not require the variances. Finally, the court noted that landowner had created the hardship by building or reconstructing most of the structures without obtaining a building permit.