NY Appellate Court Reverses Court Below and Upholds Approval of Building Permit and CO

In February, 2006, Benmar Properties, LLC purchased an 18,000 squre foot property

Post on LAW OF THE LAND NY Appellate Court Reverses Court Below and Upholds Approval of Building Permit and CO by Patricia Salkin In February 2006, Benmar Properties, LLC, purchased an 18,000 square foot property with a single family dwelling in the Tompkins Farm community, located in a residential district in the Village of Mamaroneck, NY, with plans to subdivide the property to create two buildable residential lots, one of which would house the existing dwelling. The R-5 residential district in which the property was located had a minimum lot size requirement of 5,000 square feet. The Village of Mamaroneck code stated that no building permits would be issued for lots whose subdivision caused them to fall out of conformity with the village’s zoning code. The new buildable lot that Benmar’s plan would have created fell short of lot depth requirements, measuring only 94.52 feet where 100 feet were required, so Benmar sought an area variance. The Board of Appeals in May 2006 granted the variance; a decision which was annulled in a January 2007 decision by the New York State Supreme Court, Westchester County, since the Board of Appeals had previously denied an area variance in 1991 on substantially similar facts. (For the 2007 decision, see Matter of Lucas v. Board of Appeals of Vil. of Mamaroneck, 14 Misc.3d 1214[A], (NY Sup Ct, Westchester County 2007)). In its decision, the Court had held that the Board of Appeals failed to provide a “rational and satisfactory explanation” for departing from prior precedent and granting a variance where the same request made by a different party had been denied. Absent that explanation, the Court concluded the variance approval was arbitrary and capricious, and thus unlawful. After the Supreme Court’s decision, Benmar approached a neighbor about purchasing a 4.5-foot by 50-foot strip of land abutting the proposed subdivision to address the lot depth issue. Before closing the deal, both Benmar and the abutting property owner approached the Village’s Code Enforcement officer for a letter opinion stating that the transaction would remedy Benmar’s lot depth issue. Once the transaction was complete, Benmar was issued a building permit for the new parcel. Adjacent property owners, Nora Lucas and several others, challenged the Village’s decision to issue a building permit before the village Board of Appeals. The Board of Appeals denied the administrative appeal, and the neighbors filed this Article 78 proceeding challenging the Board of Appeals’ refusal to grant an administrative hearing, as well as the building permit issuance and the issuance of any certificate of occupancy that might have been approved following their Article 78 filing. Despite the challenge, in July 2008, the Village issued a certificate of occupancy. At trail, the Supreme Court granted petitioners’ request to annul the Board of Appeal’s denial of an administrative appeal, and also overturned the building permit and certificate of occupancy decisions, entering an order to compel the Village to revoke those approvals. The Village here appeals. On appeal, the Second Department reviewed the merits of the neighbors’ case against the issuance of the building permit and the certificate of occupancy. Because Benmar had purchased land necessary to make both subdivided lots conforming lots, and because there were no other provisions which required Benmar to obtain variances on either property, the Court held that the Board of Appeals’ denial of the neighbors’ administrative appeal was proper, and that the Supreme Court had erred in holding otherwise. Further, the Court noted that the neighbors had failed to name and join the proper party for compelling revocation of the building permit and certificate of occupancy, which should have been the Village’s director of Code Enforcement, not the Board of Appeals. Despite this flaw, the Court held that Benmar was entitled to the building permit and certificate of occupancy for the then-conforming lots, so the petitioners’ request to have the approvals revoked should have been denied regardless of whether the neighbors had named the proper party. For all of those reasons, the Court reversed the decision of the Supreme Court below and upheld the Board of Appeals’ decisions and the Village’s permit/certificate approvals. Lucas v. Board of Appeals of Village of Mamaroneck, 2013 WL 5226126 (2d Dept. 9/18/13) The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2013/
Patricia Salkin | October 3, 2013 at 1:09 am | Categories: Current Caselaw - New York, Necessary Parties, Non-Conforming Uses | URL: http://wp.me/p64kE-1Zv Comment