When Towns Err, the Landowner May Suffer

head shot of Diana Bunin Kolev
Diana Bunin Kolev

Landowners are often surprised to learn that municipal officials are not bound by their representations regarding applicable zoning or the permissibility of a use of property, and could incur unnecessary delay and expense by relying on such representations without exercising due diligence.

Property owners will often approach municipal officials in order to understand better the permits and approvals required for a project. It is during these initial meetings that property owners may be misled by well-meaning municipal officials, consultants, and employees to believe that a project is viable, when in fact it actually may be prohibited or restricted by the applicable zoning. Relying on these verbal representations, and even eventually on the permits and approvals, they direct their consultants to prepare costly plans and incur other expenses, assuming that they are on their way. However, notwithstanding prior representations, some unlucky property owners may find themselves blindsided when it turns out that the project or use is actually in violation of zoning and the municipality takes action to correct the error or mistake made by its officials.building inspector in hard hat writing notes at a construction site

Municipal officials are entitled to do whatever is necessary to enforce zoning ordinances and correct any errors, even when the result is detrimental to the property owner or when the initial advice came from a municipal official. In other words, a building inspector who determines that a permit was issued in error may revoke a permit, issue a stop work order, or refuse to issue a certificate of occupancy even after construction has already begun or is completed. In fact, the municipality may go so far as to direct the demolition of a portion or the entirety of a building.

Courts have consistently rebuffed attempts by property owners to prevent the municipality from enforcing its laws or correcting an error, even in instances where the owners have relied on representations of municipal officials. However, New York’s courts have consistently held that a government agency cannot be “estopped” from enforcing its laws or correcting errors, especially where reasonable diligence by a good-faith inquirer would have disclosed the existence of the law. Thus, holding back a government agency is all but impossible – that is unless a municipal official acts in a fraudulent or deceptive manner in order to induce detrimental reliance by a property owner.

So what is a property owner to do?

An Ounce of Prevention if Worth a Pound of Cure

The first rule in approaching any application before a municipality is to do your homework, generally by hiring a competent attorney familiar with land use and zoning, and preferably with experience in your municipality. Do not assume that a building inspector, town attorney, or any municipal official is acting in your best interest, even if they are helpful or accommodating. Zoning codes are complex and often difficult to decipher. Although it is possible that even diligent review may not uncover all potential issues, a property owner will be better prepared and in a better position legally should municipal officials unexpectedly revoke an approval.

Seek Relief from the Zoning Board of Appeals

If you find yourself facing a stop work order mid-construction or with a revoked permit for a completed building, you should consider seeking relief from the municipal zoning board of appeals rather than running to court. The zoning board has the authority under state law to “reverse or affirm, wholly or partly, or may modify” the decision of the building inspector or code enforcement officer, and may issue a variance from the zoning requirements where certain criteria are met. Furthermore, an appeal to the zoning board generally stays the municipality’s enforcement proceedings, providing the time necessary to seek an appeal while continuing with construction.

Instead of, or in addition to, seeking review from the zoning board, a property owner may consider bringing a declaratory judgment action in the New York Supreme Court. In such an action, the owner essentially requests a court to interpret the applicable zoning regulations and declare the rights of the parties.

The land use approval process is surprisingly complex with many potential pitfalls, and each municipality has its own laws and idiosyncrasies. Securing competent representation with local experience is often a wise investment in prevention.

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