Posted by: Patricia Salkin | February 16, 2012

NY Appellate Court Rejects Arguments of Tort, Abuse of Discretion and Substantive Due Process After Denial of Area Variance

Plaintiffs purchased and began new construction and repairs on residential property.  Shortly after, the town code enforcement officer discovered plaintiffs had failed to obtain a building permit and issued a stop work order.  Plaintiffs applied for the permit, however, the application was denied because the plaintiff’s lot was too small for their intended use.  Plaintiffs subsequently applied for an area variance which was similarly denied by the zoning board of appeals.  This action was commenced and the lower court granted defendant town’s motion to dismiss, and plaintiffs appeal.

Plaintiffs argue four things on appeal: that they are entitled to a declaratory judgment; a claim in tort that the defendant’s denial of the plaintiff’s application was negligent; that denying the permit was an abuse of discretion; and substantive due process claims.  First, the court discusses the declaratory judgment claim.  Plaintiffs seek a declaratory judgment that their property was grandfathered in and, thus, they were not subject to the restrictions of the zoning ordinance.  The court does not get to the merits of this argument because they find that the statute of limitations on the claim has run.  Plaintiffs should have properly brought the action challenging the decision of the administrative agency within thirty days.  Thus, the six year statute of limitations for a declaratory judgment is inapplicable.  

Second, the court examines plaintiffs’ tort claims, alleging negligent denial of their application.  The rule, explains the court, is that a government actor can only be liable in a tort action where the conduct is ministerial and violates a special duty owed to the plaintiff.  Here, the court finds no evidence that the actions were either ministerial nor allegations of a special duty.  Thus, the appeals court similarly dismisses this claim. 

Third, the court entertains plaintiffs’ claim that denial of the permit application was an abuse of power because it informed the plaintiffs that their only remedy was an appeal of the decision, not a new application.  The court finds, however, that this conduct was reasonable and within the discretion of the board.  Similarly, the court finds no proof that this was beyond the scope of the employees duties, and thus dismisses this claim. 

Finally, the court turns to plaintiff’s substantive due process claims.  The court begins by explaining that there must be “constitutional violations of property rights” and not mere “judicial review of land-use determinations.”  Further, plaintiff must show that they had been deprived of an actual property right, not simply an expectation.  Here, the court finds, plaintiffs failed to show an actual right to construct on their property.  Similarly, there were no facts that the defendant’s decision was egregious or arbitrary.  Thus, the plaintiffs have failed to even allege a substantive due process claim. 

The court affirmed the lower court’s grant of dismissal. 

Kreamer v. Town of Oxford, 2012 WL 149402 (App. Div. 3d Dep’t 01/19/2012).  

The opinion can be accessed at:



  1. This is a situation where the Town has opted out of enforcing the building code and the County acts as Code Enforcement. The town accepts applications to enforce zoning, then send the permit to the County for building and maintence enforcement. The ZBA informed me I could make repairs as indicated on the ZBA decision, which under Town Law, would be the minimum allowance as required. As they suggested, I submitted a new permit, and submitted additional applications, only to be discarded by the Town with out explanation. I was unable to obtain the ZBA decision. After several requests, I appeared in the Town office to request a copy from the Town Clerk, who stated he did not have it either. at this point, The town supervisor instructed members of the ZBA to not speak with me. The then zoning enforcer produced a copy of the decision right before he quit. I requested the record under FOIL and the documents received in electronic format from the clerk indicate serious errors, spoliation and poor reproduction of documents. There was also a letter in opposition to my permit from a neighboring property owner who happens to be the Town Clerk and his wife, who now is on the ZBA. This is a residence in a residential neighborhood. I continue to pay taxes on the residence, not vacant land. I would like my property to look nice, that is all I ask for. I also have one of the larger parcels in the neighborhood, but I find it rather strange that neighboring property owners on smaller lots have since been able to make the same repairs I requested or put additions on, without any problem, and on at least two properties ave been permitted new construction. However, I have been unable to close or repair my roof. Since, the town supervisor, now the chairman of the county board of supervisors continues to file complaints with the county stating I am making repairs without a permit, which have been unfounded. I should mention the Town Attorney was hired by me for the closing on this property, he as several other appointed employees involved with this matter have resigned. The court has not solved the problem of the ongoing issues,

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: