Posted by: Patricia Salkin | October 28, 2018

NY Appellate Court Directs Building Inspector to Issue a Building Permit Where all Requirements For the Permit Were Satisfied Pursuant to the Zoning Code

This post was authored by Matthew Loeser, Esq.

Petitioners owned waterfront property in the Village of Lloyd Harbor, which was encumbered by an open space easement subject to condition subsequent to the benefit of the Village. This condition prohibited the construction of a dock. The petitioners made three attempts to obtain the Village’s permission to build a dock despite the easement, each of which leading to proceedings before the Supreme Court. In their third attempt, the petitioners applied for a permit to build a dock that allegedly conformed with the Village’s zoning code. Despite this, the Village’s Building Inspector, James Sino, refused to consider the permit application on the ground that the open space easement deprived him of jurisdiction to do so under the “parkland alienation doctrine.” The Supreme Court denied the Building Inspector’s motion to dismiss the proceeding, granted the petition, and directed the Building Inspector to issue the requested permit.

 

Pursuant to the Village of Lloyd Harbor Code, every completed application for a building permit for the construction of any building within the Village “shall be referred by the Building Inspector to the Site and Building Permit Review Board of the Village for review.” Here, the was no dispute that the petitioners’ application giving rise to this proceeding conforms in all respects to the zoning code. The Building Inspector therefore had a nondiscretionary legal duty to refer the petitioners’ application to the site and Building Permit Review Board within 21 days. As the court’s directive to the Building Inspector bypassed these provisions of the Village Code, it exceeded the relief to which the petitioners were entitled.

 

As to the Building Inspector’s contention that the petitioners failed to establish their clear legal right to relief because the Village held a valid space easement enforceable against the petitioners, the court determined that the validity of the open space easement was decided in their favor in Kleinknecht I, and the Building Inspector was therefore estopped from asserting its validity here. Accordingly, the court modifed the order and judgment by directing the Building Inspector to forward the petitioners’ permit application to the Village’s Site and Building Permit Review Board in accordance with Village of Lloyd Harbor Code.

 

Kleinknecht v Sino, 2018 WL 5020282 (NYAD 2 Dept. 10/17/2018)


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