NY Appellate Court Upholds Rejection of Owner’s Incomplete Building Permit Application for Non-Conforming Use Submitted Two Weeks Prior to Expiration of Town Building Code’s One-Year Restoration Period

Petitioner, Tisha Warner, owned a parcel of land in the Town of Kent. Until February 2010, a single-family residence was located on the property. While the residence was not in conformity with the Town’s zoning ordinance, it was protected as a pre-existing “nonconforming building” under the Code of the Town of Kent § 77–47(A). On February 3, 2010, a fire destroyed most of the residence. The demolition was completed on December 26, 2010. On January 21, 2011, two weeks before the one-year rebuilding period expired, the Putnam County Department of Health approved what it described as the petitioner’s plans for a “proposed addition” to the residence, but stated that its approval was “for the proposed changes only,” and that “any other permits or variances required are the responsibility of the applicant and the jurisdiction of the Town of Kent.” Sprague then filed an application for a building permit, but the Town Building Inspector allegedly told him that she would not review the application until a site survey and plans signed by an architect were also submitted. Sprague hired a surveyor on February 1, 2011, two days before the expiration of the one-year rebuilding period. The survey was not completed until April 2011. On October 26, 2011, almost 21 months after the fire, and almost 9 months after the one-year rebuilding period expired, the petitioner filed a complete application for a building permit. The Building Inspector denied the application on the ground that the one-year rebuilding period had already expired.

An article 78 proceeding was brought to review the determination of the Town of Kent Zoning Board of Appeals, which affirmed the Town Building Inspector’s denial of the petitioner’s application for a building permit. This appeal was from a judgment of the Supreme Court, Putnam County, which granted the petition, annulled the determination, and directed the Town Building Inspector to issue a building permit.

At the outset, the court noted that the Town Code’s mandatory provision—which stated that a nonconforming building “shall not be re-established … unless such restoration is completed within one year from the date of such destruction”—neither said nor implied that the ZBA was vested with discretionary authority to extend the time limit. Instead, the Town Code stated that “the word ‘shall’ is always mandatory and not merely directory” Here, by submitting only an incomplete application just two weeks before the one-year restoration period expired, the court determined that the petitioner could not reasonably have thought that a site survey was unnecessary, especially because the requirement of a survey was clearly stated in the Town Code, as well as on the first page of the building permit application form. The court therefore held that the ZBA’s determination affirming the Building Inspector’s rejection of the incomplete application for a building permit and her denial of the untimely application in October 2011 was not arbitrary and capricious, illegal, or an abuse of discretion. Additionally, the court held that the petitioner’s claim that the application of Town Code § 77–48 to the subject property resulted in an unconstitutional taking without compensation was not ripe for review, since she failed to establish that she exhausted her administrative remedies by applying for a variance.

Warner v. Town of Kent Zoning Bd. of Appeals, 2016 WL 6604696 (NYAD 2 Dept. 11/9/2016)