Appellate Court Upholds Rejection of Incomplete Building Permit Application for Non-Conforming Use Submitted Shortly Before Expiration of Building Code’s One-Year Restoration Period

Petitioner owned a real property in the Town of Kent (“Town”) with a single-family residence as a pre-existing “nonconforming building” under the Code of the Town of Kent (“Town Code”) § 77–47(A).  On February 3, 2010, a fire destroyed most of the residence, and the Town Code gave Petitioner one year (i.e. until February 3, 2011) to rebuild.  The Fire Inspector advised the building be condemned and demolished, but Petitioner waited nine months to apply for the demolition permit. Demolition was completed on December 26, 2010.  On January 21, 2011, two weeks before the one-year period expired, the Putnam County Department of Health approved what it called plans for a “proposed addition” to the residence, but said its approval was “for the proposed changes only,” and that “any other permits or variances required are the responsibility of the applicant and the jurisdiction of the Town of Kent.” Petitioner applied for a building permit, but the Town Building Inspector required a site survey and plans signed by an architect before review. A surveyor was hired on February 1, 2011, but the survey was not completed until April 2011. On October 26, 2011, nearly 9 months after the one-year rebuilding period expired, Petitioner filed a complete application for a building permit, which was denied on the ground that the one-year rebuilding period had expired.  Petitioner filed an Article 78 proceeding to review the determination of the Towns’ Zoning Board of Appeals (“ZBA”), affirming the denial of Petitioner’s application. The Supreme Court, Putnam County, granted the petition, annulled the determination, and directed the Town Building Inspector to issue a building permit.  The ZBA appeals.

The Second Department found that the Town Code's provision stating that a nonconforming building “shall not be re-established ... unless such restoration is completed within one year from the date of such destruction” did not vest the ZBA with discretionary authority to extend the time limit, as “the word ‘shall’ is always mandatory and not merely directory.” Here, by filing an incomplete application just two weeks before the one-year restoration period expired, the court found that Petitioner could not reasonably have thought a site survey was unnecessary, given that the requirement of a survey was clearly stated in the Town Code and first page of the permit application form. The Court thus held that the ZBA's determination affirming the Building Inspector's rejection of the application was not arbitrary and capricious, illegal, or an abuse of discretion. The Court further held that Petitioner's claim that the application of Town Code § 77–48 to the subject property resulted in an unconstitutional taking without compensation was not ripe for review, as she failed to establish that she exhausted her administrative remedies by applying for a variance.

The case was Warner v. Town of Kent Zoning Bd. of Appeals, 144 A.D.3d 814 (2d Dep’t 2016).

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