Todem Homes, Inc. v. Board of Zoning Appeals

74 A.D.2d 908, 425 N.Y.S.2d 852, 1980 N.Y. App. Div. LEXIS 10707

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of Southampton denying petitioner’s application to continue the construction of a motel in accordance with plans submitted by it, the appeal is from a judgment of the Supreme Court, Suffolk County, dated April 25, 1979, which, inter alia, annulled the determination of the board of zoning appeals and granted the petition. Judgment reversed, on the law, without costs or disbursements, determination confirmed and proceeding dismissed on the merits. Todem Homes, Inc., was adjudged to have a vested right to complete construction of a motel which it began just prior to the enactment of a new zoning ordinance precluding such a use in that area (Town of Southampton v Todem Homes, 50 AD2d 844). The question now presented is whether Todem Homes’ vested right included the right to amend its construction plan to add accessory uses which would have been permitted in that zone under the old ordinance, without the necessity of complying with the town’s current zoning ordinance. The only right that vested by virtue of commencing construction of the motel pursuant to its valid building permit was the right to complete the project as authorized by the permit and not to add additional or different structures (see Matter of South Path Realty Corp. v Howe, 34 AD2d 647, affd without opn 29 NY2d 565; Matter of Rogers v Department of Housing & Bldgs, of City of N. Y., 5 AD2d 784; see, also, Matter of Chats-worth 72nd St. Corp. v Foley, 29 AD2d 522). Todem Homes may complete construction pursuant to its vested right according to its building permit or it must comply with the current zoning ordinance with respect to the amended plans developed between itself and the board. Hopkins, J. P., Damiani, Titone and Mangano, JJ., concur.