NY Appellate Court Affirms ZBA’s Denial of Letter of Correction to Amend a Certificate of Occupancy

This post was authored by Matthew Loescher, Esq.

In this case, the petitioner sought to set aside a determination of the Zoning Board of Appeals of the Town of Brookhaven. The ZBA’s determination confirmed a determination of the Town’s Chief Building Inspector, which denied the petitioner’s application for a letter of correction to amend a certificate of occupancy dated August 27, 1974. The certificate of occupancy was issued for a four-unit shopping mall designated for “retail use.” The petitioner filed an application with the Chief Building Inspector requesting that a letter of correction be issued amending the certificate of occupancy to reflect the current uses of the four units (i.e., salon, store, deli, and bar). The Supreme Court denied the CPLR article 78 petition and dismissed the proceeding.

On appeal, the court found that the determination of a zoning board of appeals had a rational basis in the record, and court may not substitute its own judgment, even where the evidence could support a different conclusion. Here, the court held, in conclusory fashion, that the ZBA’s determination was not arbitrary or capricious, had a rational basis in the record, and would therefore not be disturbed.

Wilson v Dechance, 2020 WL 5540271 (NYAD 2 Dept. 9/16/2020)