New post on LAW OF THE LAND
NY Trial Court Finds No Property Right in an Erroneously Issued Permit
by Patricia Salkin
The Building Department for the Town of North Hempstead issued two use permits to Designer Limousines to operate its business. Pursuant to the Town Code, the Building Department Commissioner has the authority to revoke any permit “[w]here he finds that the permit was issued in error and should not have been issued in accordance with the applicable law.” Following a revocation hearing, at which the Deputy Commissioner of the Building Department stated that there was no provision within the Town Code authorizing the Deputy Commissioner to produce such a document or issue it to the public, the Commissioner of the Building Department revoked Plaintiff’s two permits. Plaintiff, Designer Limousines, sought damages for lost business alleging that the town acted arbitrarily, capriciously, and negligently.
The town prevailed on a motion to dismiss for failure to state a cause of action, because erroneously issued permits do not create property rights for which aggrieved parties can seek damages. Citing Orangetown v. McGee, the Supreme Court noted: “In New York, a vested right can be acquired when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development.” Vested rights cannot be created in reliance upon an invalid permit; an erroneously issued permit does not estop a municipality from correcting errors, even where there are harsh results. A court may apply these rules even where the plaintiff was not involved in the building or construction of a structure. Adopting the principal articulated in McGee and other cited cases, the court concluded that towns have the right to revoke erroneously issued permits and may not be held liable in damages when building inspectors erroneously issue such permits or subsequently decide to revoke them.
Designer Limousines Inc. v. Town of North Hempstead, 32 Misc. 3d 1212(A) (7/10/2011).
Thanks to Jennie Nolon, Esq. of the Land Use Law Center at Pace University School of Law for sending in this abstract.
Patricia Salkin | January 28, 2012 at 1:10 am | Categories: Current Caselaw – New York, Vested Rights | URL: http://wp.me/p64kE-1zk
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