Second Department Holds Building Inspector’s Determination That Separate Building Permit Was Necessary For Driveway Work Was Not Arbitrary And Capricious

Petitioners were the owner and lessee of an approximately 60–acre commercial horse boarding and training facility. The facility began operating pursuant to a special use permit issued by the Village of Muttontown (“Village”) in 1977.  Petitioners planned to renovate and upgrade the property, including by adding an indoor riding area.  After a six-year review process, the Village Board of Trustees approved the application.  However, while Petitioners were in the process of widening and repaving the driveway, the Village Building Inspector issued a stop work order on the basis that Petitioners had failed to obtain a permit.  Petitioners brought an Article 78 proceeding against the Village, Village building department, and related individuals. The Supreme Court, Nassau County, granted the petition, and the municipal parties appealed.

On appeal, the Second Department reversed the lower court’s decision.  The record reflected that the Building Inspector determined that the work being performed on the driveway required a separate building permit. While Petitioners contended the driveway work was approved by the Village Board of Trustees, and the subject work was covered under the broader building permit issued for their other renovations, the Court found that the Building Inspector’s determination that an additional permit was necessary was not made in violation of lawful procedure, was not affected by an error of law, was not arbitrary and capricious, and did not constitute an abuse of discretion. Accordingly, the Court reversed and held that the petition should have been denied and the proceeding dismissed.

The case was Carnelian Farms, LLC v Village of Muttontown Building Dept., 151 A.D. 3d 847 (2d Dep’t 2017). 

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