Matter of Warner v. Town of Kent Zoning Bd. of Appeals

2016 NY Slip Op 7332, 144 A.D.3d 814, 40 N.Y.S.3d 517

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 2016
• Docket: 2014-07430
• Status: Published

Opinions

In a proceeding pursuant to CPLR article 78 to review a determination of the Town of Kent Zoning Board of Appeals dated May 21, 2012, which, after a hearing, affirmed the Town Building Inspector’s denial of the petitioner’s application for a building permit, the appeal is from a judgment of the Supreme Court, Putnam County (Nicolai, J.), dated May 13, 2014, which granted the petition, annulled the determination, and directed the Town Building Inspector to issue a building permit.

Ordered that the judgment is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.

Since 2000, the petitioner, Tisha Warner, has owned a parcel of land on Lakeshore Drive East in the Town of Kent. Until February 2010, a single-family residence was located on the property. The residence was not in conformity with the Town’s zoning ordinance but was protected as a preexisting “nonconforming building! ]” under the Code of the Town of Kent (hereinafter the Town Code) § 77-47 (A). The petitioner’s father, Robert Sprague, resided in the residence. On February 3, 2010, a fire destroyed most of the residence. Shortly after the fire, the Town Fire Inspector sent the petitioner a letter detailing the damage. In that letter, the Fire Inspector informed the petitioner that he would recommend to the Town Building Department that the residence be condemned and removed. He also said that he had met with Sprague and advised him to contact the Building Department to obtain a demolition permit and begin the process of obtaining permits to rebuild, the residence.

At all relevant times in this matter, the Town Code provided that the petitioner had the right to rebuild the nonconforming residence, but only if she completed the rebuilding within one year after the fire: “A noncomplying principal building shall not be reestablished in its noncomplying location nor restored in other than a complying location after such building shall have been damaged, which damage shall exceed 75% of its bulk or square footage, unless such restoration is completed within one year from the date of such destruction” (Town Code former § 77-48 [A] [emphasis added]). It is undisputed that the damage to the residence exceeded the 75% threshold. Thus, the petitioner had the right to rebuild the residence, so long as she completed the rebuilding by February 3, 2011.

The petitioner and Sprague became involved in a dispute with their insurance company, which had canceled their homeowner’s insurance policy for lack of payment. The petitioner did not apply for a demolition permit until November 4, 2010, nine months after the fire. The demolition permit was granted that day. 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 cautioned that its approval was “for the proposed changes only,” and that “[a]ny other permits or variances required are the responsibility of the applicant and the jurisdiction of the Town of Kent.” On the same day that the Department of Health issued its approval, Sprague 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 nine 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.

On November 4, 2011, the petitioner, acting through Sprague, filed a one-page form labeled a “Request for Hearing/ Application for Variance” with the Town Zoning Board of Appeals (hereinafter the ZBA). Although the November 2011 application was labeled as one for a “variance,” it did not seek the area variances that would be necessary to allow the petitioner to rebuild her house in its original location after her one-year period to rebuild as of right pursuant to Town Code § 77-48 (A) had expired. Rather, the November 2011 application sought, in essence, to extend the petitioner’s one-year period to rebuild pursuant to Town Code § 77-48 (A). Sprague subsequently appeared before the ZBA on December 16, 2011, and presented plans for a modular house with the same footprint as the original house, but with a second floor that had not been part of the original residence. Sprague told the ZBA that he had a power of attorney from the petitioner, who was in the process of deeding the property to him.

The matter was on the agenda at several ZBA meetings between December 16, 2011, and May 21, 2012. During those meetings, Sprague, ZBA members, and concerned neighbors referenced the Building Inspector’s denial of the application for a building permit under the one-year rebuilding provision of Town Code § 77-48 (A). They also, however, referred generally to a “variance.” At the ZBA meeting on May 21, 2012, Sprague provided an account of the events since the fire and the reasons for the delay in rebuilding the residence beyond the one-year period of Town Code § 77-48 (A). Sprague asserted that the delay was attributable to the dispute with the insurance company, the State Insurance Department’s investigation into that dispute, and the unhelpfulness of the Building Inspector.

Near the end of the proceeding on May 21, 2012, a ZBA member moved to affirm the Building Inspector’s October 26, 2011, denial of the application for a building permit. The ZBA member said that “the only question before the ZBA was whether or not the Building Inspector should have denied the building permit,” and he moved to affirm that denial. The ZBA Chairman stated that the record supported the conclusion that the application for the building permit had been filed more than one year after the residence had been destroyed. He stated that the ZBA would be “effectively rewriting” Town Code § 77-48 (A) if it were to grant the application for the building permit. Sprague asked whether he would be able to apply for a variance to build a new house with a different footprint. The ZBA Chairman answered that he could, but he would face challenges. Sprague then asked if he could “put the variance on hold,” and the ZBA Chairman replied that “the Zoning Board would like to resolve the issues at hand at this meeting and it wouldn’t affect Mr. Sprague’s ability to reapply.” The ZBA then voted on, and approved, the motion to affirm the Building Inspector’s denial of the building permit.

In its written decision, which was dated May 21, 2012, and filed with the Town Clerk on June 1, 2012, the ZBA found, among other things, that the petitioner had filed an application for a building permit on January 21, 2011, but that the application was “rejected” because it “lacked basic elements like building plans, a survey, etc.” The ZBA also found that a complete application for a building permit had not been submitted until “[n] early eight months after the initial year had lapsed,” and that the Building Inspector denied it on that ground. The ZBA noted that, “according to the [Town] Code, if the homeowner wants to restore the noncomplying structure in the same location, the restoration must be completed within one year.” It pointed out that, “[h]ere, the applicant merely submitted an incomplete application for a building permit prior to the one-year expiration.” The ZBA summarized the petitioner’s contentions regarding the reasons for the delay in seeking to rebuild, most notably the dispute with the insurance company, but stated that the documents submitted in connection with the application “disclosed another story.” The ZBA concluded: “It is the opinion of this Board that the mere filing of an application is not enough to satisfy the [Town] Code’s specific requirement to completely restore the non-complying building within one year. . . . Therefore, it is the opinion of the Board that the building inspector’s decision was reasonable and the Board affirms her denial of a building permit.” The ZBA’s written decision focused entirely on whether the Building Inspector had correctly applied Town Code § 77-48 (A), and did not consider the issue of whether the ZBA should exercise its discretion to grant the area variances that would be necessary to allow the petitioner to rebuild after the expiration of the one-year period to rebuild as of right.

After receiving the ZBA’s written decision, the petitioner timely commenced this proceeding pursuant to CPLR article 78 to review the ZBA’s determination. She contended that the ZBA’s determination upholding the Building Inspector’s October 2011 denial of the building permit was arbitrary and capricious, lacked a rational basis, and constituted an abuse of discretion.

In a judgment dated May 13, 2014, the Supreme Court stated that the petitioner had made “diligent, continuous efforts to comply with every directive of the Building Inspector in moving forward with the permit application process,” and it concluded that, “under these unique circumstances,” the ZBA’s finding that the petitioner’s “hardship was self-created lack[ed] a rational basis.” The court granted the petition, annulled the ZBA’s determination, and directed the Building Inspector to issue the building permit. The court did not address whether the ZBA had correctly interpreted the Town Code, or whether it was estopped from enforcing it.

The respondents, the Town and the ZBA, appeal. We reverse.

Before we discuss the issues raised on this appeal, we note that in October 2013, while the petition was pending in the Supreme Court, Town Code § 77-48 (A) was amended to change the one-year period for rebuilding noncomplying structures to two years (see Local Law No. 4-2013 of Town of Kent [eff Sept. 1, 2013]). This amendment is not relevant to the issues raised on this appeal.

We further note our disagreement with our dissenting colleague’s conclusion that a plain reading of the petitioner’s November 2011 application demonstrates that it sought area variances as an alternative to the request for an extension of the one-year period to rebuild as of right pursuant to Town Code § 77-48 (A). Indeed, the petitioner made clear in this CPLR article 78 proceeding that she did not seek a variance of any kind from the ZBA. In Sprague’s affidavit in support of the petition, he focused entirely on the one-year rule of Town Code § 77-48 (A), and did not mention that any request for a variance had been made. In a memorandum of law in support of her petition, the petitioner expressly stated that she had sought no variance from the ZBA: “a plain sense reading of the application makes clear that it was not one for area variances, but rather one for a determination that Respondent Town of Kent was estopped from enforcing the one year period of limitations contained in Section 77-48 (A) by virtue of the Building Inspector’s actions and inaction. . . . Petitioner did not seek a variance of Section 77-48; rather, she sought an interpretation and determination that Respondent Town should be estopped from enforcing the limitation contained in Section 77-48 as a result of the Building Inspector’s conduct.” Moreover, as we have noted, the ZBA did not consider the issue of whether it should exercise its discretion to grant the petitioner area variances. Accordingly, the issue of whether the petitioner should be granted area variances to permit her to rebuild is not properly before us on this appeal.

The Town Code provides that the ZBA “shall make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the administrative official charged with the enforcement of this chapter, and to that end shall have all the powers of the administrative official from whose order, requirement or decision the appeal is taken” (Town Code § 77-57 [A]). Thus, the ZBA was authorized to make whatever determination the Building Inspector should have made in the first instance. The ZBA determined that the petitioner’s application for a building permit was correctly denied.

Judicial review of a determination of a zoning board of appeals is limited to ascertaining whether the board’s action was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Ogden Land Dev., LLC v Zoning Bd. of Appeals of Vil. of Scarsdale, 121 AD3d 695, 696 [2014]). To the extent that the petitioner contended that the Building Inspector had no basis to reject her permit application in January 2011, her challenge is without merit. The Building Inspector rejected that application because it was incomplete. It lacked, among other things, a survey. The petitioner did not assert that her application was in fact complete, but only that Sprague had not been told that a survey was needed.

The ZBA’s affirmance of the October 2011 denial of the complete application for a building permit was based on its interpretation of Town Code § 77-48 (A) as then in effect. Since the interpretation of the terms of that section involves a pure legal interpretation of statutory terms, we do not defer to the ZBA’s interpretation, but instead make an independent review of the law (see Matter of New York Botanical Garden v Board of Stds. & Appeals of City of N.Y., 91 NY2d 413, 419-420 [1998]; Matter of Teachers Ins. & Annuity Assn. of Am. v City of New York, 82 NY2d 35, 41-42 [1993]; Matter of BBJ Assoc., LLC v Zoning Bd. of Appeals of Town of Kent, 65 AD3d 154, 160 [2009]). We conclude that the ZBA correctly interpreted the then-current version of Town Code § 77-48 (A). Indeed, the provision “could not be clearer” (Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98, 103 [1997]); it enunciated a strict one-year limit for completion of the rebuilding of a destroyed nonconforming residence. Thus, the ZBA’s affirmance of the denial of the October 2011 permit application was a correct interpretation of the law. The ZBA correctly concluded that it was not authorized to disregard that clear language.

The Supreme Court and our dissenting colleague read Town Code § 77-48 (A) as allowing a good-cause extension of the applicable time limit to complete rebuilding a destroyed structure. We disagree, because that reading is inconsistent with the clear and unequivocal language of the provision itself. Unlike ordinances that provide for discretionary extensions of time to restore a destroyed nonconforming building (see e.g. Code of Town of Niskayuna § 220-55; Code of Town of North Castle § 355-67 [C] [2]), the Town Code’s mandatory provision—which stated that a nonconforming building “shall not be reestablished . . . 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. Indeed, the Town Code states that “[t]he word ‘shall’ is always mandatory and not merely directory” (Town Code § 77-64 [F]; see Matter of Exxon Corp. v Board of Stds. & Appeals of City of N.Y., 128 AD2d 289, 293-294 [1987]; see generally Patricia E. Salkin, 1 New York Zoning Law & Practice § 10:40).

The petitioner’s only claim, as she specifically stated in a memorandum of law, was that the ZBA was estopped from enforcing the one-year limit, not that the ZBA misinterpreted it. Generally, the doctrine of estoppel is not available against a governmental agency to prevent it from discharging its statutory duties, even when the results are harsh (see Matter of Parkview Assoc. v City of New York, 71 NY2d 274, 282 [1988]; Laws Constr. Corp. v Town of Patterson, 135 AD3d 830, 830 [2016]; F.A.S.A. Constr. Corp. v Village of Monroe, 14 AD3d 532, 533 [2005]). Exceptions to the general rule may be warranted in “unusual factual situations to prevent injustice” (Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359, 369 [1988] [internal quotation marks omitted]), but only in the “rarest cases” (Matter of Parkview Assoc. v City of New York, 71 NY2d at 282; see e.g. Matter of Faymor Dev. Co. v Board of Stds. & Appeals of City of N.Y., 45 NY2d 560, 565-566 [1978]).

This is not one of those rare cases. Nothing that the Building Inspector may have done or said misled the petitioner into failing to comply with Town Code § 77-48 (A) (see Cymbidium Dev. Corp. v Smith, 133 AD2d 605, 608 [1987]). Indeed, in submitting only an incomplete application just two weeks before the one-year restoration period expired, the petitioner could not reasonably have thought that a site survey was unnecessary. The requirement of a survey is clearly stated in the Town Code (see Town Code § 27-8 [D]), as well as on the first page of the building permit application form.

The Supreme Court’s decision and the dissent accept the truth of the petitioner’s averments, and overlook evidence in the record that raises questions as to the accuracy of those averments. Nonetheless, even assuming the truth of the petitioner’s averments, we conclude that the ZBA was not estopped from enforcing the one-year time limit then existing under Town Code § 77-48 (A) (see Matter of Parkview Assoc. v City of New York, 71 NY2d at 282).

Accordingly, we conclude that the ZBA’s determination affirming the Building Inspector’s rejection of the incomplete application for a building permit in January 2011 and her denial of the untimely application in October 2011 was not arbitrary and capricious, illegal, or an abuse of discretion (see CPLR 7803 [3]; Matter of Spicer v Holihan, 158 AD2d 459, 459-460 [1990]; Matter of Smith v Town of Penfield, 115 AD2d 262, 262-263 [1985]; Matter of Swartz v Wallace, 87 AD2d 926, 928-929 [1982]; cf. Matter of Raritan Dev. Corp. v Silva, 91 NY2d at 104-105; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539, 545 [1984]).

The petitioner’s assertion that the application of the then-existing version of Town Code § 77-48 to the subject property resulted in an unconstitutional taking without compensation is not ripe for review, since she failed to establish that she exhausted her administrative remedies by applying for a variance (see Matter of Parkview Assoc. v City of New York, 71 NY2d at 283; Matter of BBJ Assoc., LLC v Zoning Bd. of Appeals of Town of Kent, 65 AD3d at 157 n 1; Dick’s Quarry v Town of Warwick, 293 AD2d 445, 445-446 [2002]).

Finally, we note that the petitioner is not precluded from applying for the area variances that would be necessary to allow her to rebuild her house (see Town Law § 267-b; Matter of Smith v Town of Penfield, 115 AD2d at 263). We express no opinion as to whether such area variances should be granted.

Balkin, J.P., Roman and Connolly, JJ., concur.