Posted by: Patricia Salkin | March 22, 2009

Board’s Failure to Follow its Own Precedent Results in Reversal

The petitioner/plaintiff was granted a building permit to construct a six-story condominium building.  Subsequent, a “10-day notice to revoke” was issued after the building department alleged that the work was not being done in accordance with the petitioner’s certified plans. Shortly thereafter, the site was rezoned, which administratively caused the permit to lapse. The day after the rezoning, the building department revoked the permit based on the petitioner’s failure to cure the Department’s objections. The petitioners then applied to the Board of Standards and Appeals to renew the permit, and prior to the hearing, the Department reinstated the permit, finding that the petitioner had cured the remaining objections.  However, the Department then claimed it acted in error. Following a hearing on the renewal request, the Board denied the application, based on its determination that the petitioner had not cured the objections as of the effective date of the rezoning.  


On appeal, both the trial court and the appeals court concluded that the  Board of Standards and Appeals acted in an arbitrary and capricious fashion when they failed to follow their prior precedent and failed to indicate any reason for reaching a different result on essentially the same facts.  Furthermore, the Court found that the petitioner established that it was entitled to an extension under the Zoning Resolution and that it had acquired vested rights.  Therefore, the Court ordered the Board to issue the six month extension on the building permit.


Menachem Realty, Inc. v. Meenakshi Srinivasan, 2009 WL 710285 (N.Y.A.D. 2 Dept. 3/17/2009).


The opinion can be accessed at:

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