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After receiving a building permit, the petitioners began construction of a house on their property, and subsequently they received a certificate of occupancy from the Town building official. Two years later, the petitioners were issued an appearance ticket alleging that the house violated two provisions of the Town Code – that it exceeded the allowable gross floor area and that it did not comply with a sky exposure plane requirement. The petitioners were directed to appear in district court, but they applied to the zoning board for a determination that their current building permit and certificate of occupancy were valid as a matter of right under both the doctrine of equitable estoppel (they had been given a permit and a certificate of occupancy) and under a proper interpretation of the Town Code. In the alternative the petitioners requested area variances necessary to maintain the house. The zoning board dismissed the application stating that they lacked jurisdiction to consider the application, concluding that the applicants were not seeking review of the building inspector’s determination, and in the alternative, that their request for variances could not be considered until they filed an application to maintain the house, pay the fee and if denied by the building inspector, then they could appeal to the board. The petitioners then commenced a CPLR Article 78 action to review the zoning board’s determination.

The appeals court held that the zoning board did have jurisdiction to review the building inspector’s determination that the house was in violation of the Town Code as articulated through the appearance ticket. Further, the zoning board does have authority to grant area variances resulting from an appeal of the building inspector’s determination, and the petitioners were not required to file a separate application.  

Anayati v. Board of Zoning Appeals of the Town of North Hempstead, 2009 WL 2619256 (N.Y.A.D. 2 Dept. 8/25/2009).

The opinion may be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2009/D23987.pdf