PROPERTY DEVELOPMENT BASED UPON AN INVALID PERMIT DOES NOT GIVE RISE TO A VESTED RIGHT IN THE DEVELOPED PROPERTY.
The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined petitioner did not acquire a vested right to an advertising sign erected pursuant to an invalid permit which was later revoked by the city (NYC). The court further determined the proper procedure for seeking approval for the sign is an application for a variance. Whether petitioner relied in good faith on the invalid permit could be considered in the variance proceeding:
“[A]n owner of real property can acquire a common law vested right to develop property in accordance with prior zoning regulations when, in reliance on a 'legally issued permit,' the landowner 'effect[s] substantial changes and incur[s] substantial expenses to further the development' and '[t]he landowner's actions relying on [the] valid permit [are] so substantial that the municipal action results in serious loss rendering the improvements essentially valueless'” … .
Vested rights cannot be acquired, however, where there is reliance on an invalid permit … . When a permit is wrongfully issued in the first instance, the vested rights doctrine does not prevent the municipality from revoking the permit to correct its error. Because the 2008 permit was unlawfully issued, petitioner could not rely on it to acquire vested rights. Matter of Perlbinder Holdings, LLC v Srinivasan, 2016 NY Slip Op 02122, CtApp 3-24-16
ZONING (PROPERTY DEVELOPMENT BASED UPON AN INVALID PERMIT DOES NOT GIVE RISE TO A VESTED RIGHT IN THE DEVELOPED PROPERTY)