Posted by: Patricia Salkin | March 13, 2009

Second Circuit Denies Due Process Claim Because of Lack of Property Interest in Erroneously Granted Building Permit

Plaintiffs alleged that actions taken by zoning board of appeals and the village board of trustees in connection with Plaintiffs’ residential building permit violated their civil rights. Plaintiffs owned a one family home and decided to add a rear addition to be used as a family room that would result in the house covering 26% of the property, violating the Village Code’s maximum 25% coverage.  Plaintiffs applied for a variance, which was granted, then filed an amendment to add a roof deck, which was approved, and construction began.  Plaintiff’s neighbors then filed an appeal of the granting of the variance 6 months later when construction was almost complete.  In a prior CPLR Article 78 proceeding, it was found that the neighbors’ appeal was time barred.  Plaintiffs then commenced this action, claiming that the ZBA violated their rights under the due process and equal protection clauses, asserting claims pursuant to Sections 1983 and 1986 that defendant deprived them of their building permit.


The District Court noted that to demonstrate a violation of due process rights based upon a zoning decision, a plaintiff must first demonstrate the possession of a federally protected property right to the relief sought, and if that is satisfied, then the court will look to see if the zoning decision was arbitrary and capricious. Plaintiffs’ argument would prevail only if the near completion of construction would somehow divest the ZBA of discretion to revoke a building permit. This estoppel argument, however, has no foundation in New York law because New York law is clear that estoppel cannot be invoked against a municipality to prevent the revocation of a permit.  Thus if a zoning board finds that a permit was issued in error that permit may be revoked, even in cases where construction has taken place and harsh results would occur. The district court found that since New York law clearly allows for the revocation and/or modification of a building permit, even in cases where construction is essentially complete, Plaintiffs cannot show the lack of discretion to revoke their permit, hence, they cannot show a constitutional entitlement to a permit sufficient to support a due process violation.


The Second Circuit Court of Appeals affirmed the District Court decision with respect to the due process claims.  The Circuit Court also noted that with respect to the Equal Protection claim, the Plaintiffs did not demonstrate that there was anyone else in a similar situation treated differently, and that therefore this claim fails as a matter of law.



Petruso v. Schlaefer, 2009 WL 481887 (C.A. 2 (N.Y.) 2/26/2009).


The opinion can be accessed here.

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