Posted by: Patricia Salkin | June 10, 2009

No Vested Right to Maintain Laundromat Based on Permit Issued in Error

A portion of the petitioner’s commercial building used for a laundromat was destroyed by fire in December 2005. In November 2006 the petitioner applied for a building permit to renovate the destroyed portion of the building. While his application was pending, the Town amended its zoning ordinance to prohibit laundromats in the district, effective January 2, 2007. On January 18, 2007, the building inspector erroneously issued a permit for the nonconforming use, and in reliance thereon, the petitioner completed the renovations at a substantial cost, and then requested a certificate of occupancy. In October 2007 the building department issued a notice of disapproval revoking the building permit on the grounds that it was contrary to the Town Code. The petitioner then applied for, and was denied, a use variance. He then sought a declaratory judgment that he had a vested right to maintain the laundromat, or in the alternative he challenged the variance denial. The lower court declared that the petitioner had a vested right to maintain the use and reinstated the building permit.

The appeals court reversed, noting that in New York, vested rights cannot be acquired in reliance on an invalid permit. With respect to nonconforming uses, the Town Code provides that “[n]o building which has been damaged by fire…shall be repaired, rebuilt or used except in conformity with the provisions” of the zoning law. Since the use was terminated by the fire in 2005, there was no nonconforming use in existence at the time of the enactment of the new ordinance. Therefore, since laundromats were not permitted uses when the petitioner sought the building permit, he could not acquire vested rights in reliance on a permit issued in error. The Court said that the “special facts” exception did not apply here since the petitioner failed to show evidence that the Town acted in bad faith or unduly delayed action on his permit until after the new zoning law was in effect. As a result, the petitioner had no vested right and had to apply for the use variance.

With respect to the use variance, the Court set forth the four-part statutory test that the petitioner is required to satisfy, and found that he could not meet the first prong – that no permissible use would yield a reasonable return. Although the petitioner’s expert opined that the rental of the premises would only yield a modest return, the Court noted that evidence that another use would produce a higher return than those permitted by the zoning ordinance is insufficient for the granting of a use variance.

Westbury Laundromat, Inc. v. Mammina, 2009 WL 1415179 (N.Y.A.D. 2 Dept. 5/19/2009).

The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2009/2009_04072.htm


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