NY Appellate Court Remits Matter to Town Board to Set Forth Clear Findings of Fact Regarding Variance Granted from Requirement to Obtain a Building Permit

This post was authored by Tyler Doan, Esq.

A Town Board granted the Respondents’ application for a variance from the requirement that they must obtain a building permit before making improvements to their property. Adjacent landowners brought an Article 78 petition seeking to annul the determination of the Town Board. The Supreme Court granted the Article 78 petition in part. Landowners appealed and Respondents cross appealed. The Supreme Court Appellate Division reversed and remitted the matter to the Town Board to set forth the factual basis for its determination. The Town Board then submitted an unsworn document signed solely by its attorney purporting to constitute findings of fact.

The Court, in remitting back to the Town Board to properly set forth the factual basis for its determination, reasoned that the Town Board “. . . once again precluded intelligent judicial review of its determination inasmuch as its ‘purported findings of fact are speculative and mere conclusions and contain very little [, if any] factual matter’ . . .”. Further stating that the Town Board must more than restate the terms of the applicable ordinance and the procedural history prior to and subsequent from the determination, but rather provide the findings of fact essential to its conclusion to grant the variance in the first place.

Guttman v Covert Town Board, 214 A.D. 3d 1464 (4 Dept. 3/24/2023)