Posted by: Patricia Salkin | March 7, 2018

NY Appellate Court Upholds ZBA’s Decision That Variance Conditions Must be Satisfied to Obtain a Certificate of Occupancy

Defendants constructed a residence on property they owned and following the denial of an application for a certificate of occupancy, the defendants applied to the Zoning Board of Appeals (hereinafter the ZBA) for a variance to allow the issuance of a certificate of occupancy for the residence without meeting certain requirements regarding direct access to, or road frontage on, a public street.  The ZBA granted the variance subject to specified conditions. The defendants did not challenge that decision. Thereafter the Town commenced an action to enjoin the defendants from occupying or otherwise using the residence until such time as a certificate of occupancy was issued.

The appellate court said that where a town seeks to enforce its building and zoning laws, it is entitled to a permanent injunction upon demonstrating that the party sought to be enjoined is acting in violation of the applicable provisions of local law, and that here, the Town established its entitlement to a permanent injunction, where the evidence at trial demonstrated that the ZBA granted the defendants a variance to allow the issuance of a certificate of occupancy subject to specified conditions, and that the defendants failed to satisfy those conditions.

Town of North East v. Vitiello, 2018 WL 1179143 (NYAD 2 Dept 3/7/2018)

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