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Current Builder Acquired a Vested Right to Variances Issued to Original Builder

The Second Department determined the builder had a vested right in variances issued 25 years before to the original builder.  The “vested right” concept was explained as follows:

Vested rights accrue where the owner does substantial construction and incurs substantial expense, in good-faith reliance on a permit … . “Although many cases speak in terms of reliance on permits, a right may vest in certain situations when subdivisions’ have been given a final grant of approval'” … . An owner may acquire vested rights to a site where the site is but a part of a single project and substantial construction had been commenced and substantial expenditures made in connection with other phases of the integrated project which also benefitted or bore some connection to the affected site, such as infrastructure for the entire project … . Where vested rights accrue, a successor-in-interest succeeds to the vested rights … .

Here, the project was approved as an integrated project. [The builder] and its predecessors completed substantial construction of project-wide infrastructure to the benefit of the contemplated midrises and incurred substantial expenditures in good-faith reliance on the continuing validity of the variances. [The builder] thus accrued a vested right to complete construction of the midrises in accordance with the approved site plan and variances … . Matter of Waterways Dev. Corp. v Town of Brookhaven Zoning Bd. of Appeals, 2015 NY Slip Op 01808, 2nd Dept 3-4-15

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