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ZONING BOARD PROPERLY REJECTED APPLICATION TO EXTEND THE ONE-YEAR DEADLINE FOR A REBUILD OF A FIRE-DAMAGED, NON-CONFORMING HOME.

The Second Department, reversing Supreme Court, over an extensive dissent, determined the zoning board (ZBA) properly rejected petitioner’s application to rebuild a fire-damaged, non-conforming home after the statutory one-year period for a rebuild had passed. The unambiguous language of the town code provision supported the board’s action (therefore the action was not arbitrary and/or capricious):

The ZBA’s affirmance of the … denial of the complete application for a building permit was based on its interpretation of Town Code § 77-48(A) as then in effect. Since the interpretation of the terms of that section involves a pure legal interpretation of statutory terms, we do not defer to the ZBA’s interpretation, but instead make an independent review of the law … . We conclude that the ZBA correctly interpreted the then-current version of Town Code § 77-48(A). Indeed, the provision “could not be clearer” … ; it enunciated a strict one-year limit for completion of the rebuilding of a destroyed nonconforming residence. Thus, the ZBA’s affirmance of the denial of the … permit application was a correct interpretation of the law. The ZBA correctly concluded that it was not authorized to disregard that clear language. Matter of Warner v Town of Kent Zoning Bd. of Appeals, 2016 NY Slip Op 07332, 2nd Dept 11-9-16

ZONING (ZONING BOARD PROPERLY REJECTED APPLICATION TO EXTEND THE ONE-YEAR DEADLINE FOR A REBUILD OF A FIRE-DAMAGED, NON-CONFORMING HOME)

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