Sahn Ward Coschignano, PLLC June 2019 E-Newsletter
 
Matters of Interest

Firm Successfully Defends The Village of Sands Point Board of Appeals in Challenge of Denial of Application to Construct Accessory Building to Residential Use

The Firm successfully defended the Village of Sands Point Board of Appeals in an Article 78 proceeding brought to reverse the Board’s denial of permission to convert a non-conforming accessory structure into a guest house or building.

The case presented an important legal issue whether the applicant was entitled to the use because the Building Department made a mistake when it issued a permit to the homeowner. The Petitioner argued that the Village negligently issued a building permit which was relied on in good faith to enlarge the accessory use. The Petitioner also argued that the accessory use is a lawful prior non-conforming use and a permitted accessory use pursuant to the Village Code, because it was used for habitable purposes prior to the Village Code amendment in 1989 prohibiting their use for habitable space.

The Village objected, arguing that the Village cannot be estopped from enforcing its zoning laws based on an erroneously issued building permit.

The Court sided with the Village and it denied the Petitioner's application holding that there was no evidence that the accessory use was utilized as habitable space prior to the application to enlarge it. The Court found that the Village’s decision was not arbitrary or an abuse of its power and stated: "In as much as the building permit was issued in error, and absent any evidence presented to the Village at the hearing of the accessory use being utilized for habitable space, the findings of the Village requiring an area variance for permitted uses is rationally and reasonably based pursuant to the current Village code requirements."

Click here to view the full decision details.



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