PETITIONER WAS ISSUED A PERMIT TO CONSTRUCT COMMERCIAL SPACE WITH 557 PARKING SPACES; THE PERMIT WAS REVOKED BECAUSE THE TOWN CODE REQUIRED 624 PARKING SPACES; BECAUSE THE PERMIT WAS INVALID, PETITIONER COULD NOT INVOKE THE “DOCTRINE OF VESTED RIGHTS” FOR A VARIANCE ALLOWING 557 SPACES (SECOND DEPARTMENT).

The Second Department, reversing Supreme Court, determined the petitioner was not entitled to a variance pursuant to the doctrine of vested rights. Petitioner had been issued a permit to build commercial space which included 557 parking spaces. The town subsequently revoked the permit because the town code required 624 parking spaces. Petitioner then applied for a variance arguing the permit which had been issued conveyed a vested right to the originally approved 557 parking spaces:

“The doctrine of vested rights is implicated when a property owner seeks to continue to use property, or to initiate the use of property, in a way that was permissible before enactment or amendment of a zoning ordinance but would not be permitted under a new zoning law” … . Such “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” … . However, “[v]ested rights cannot be acquired in reliance upon an invalid permit” … . “[T]he mistaken or erroneous issuance of a permit does not estop a municipality from correcting errors, even where there are harsh results” … . Here, as the ZBA [zoning board of appeals] soundly determined, the permit issued to the petitioner was invalid, since the Town Code plainly sets forth the method for calculating the nonresidential gross floor area according to which the number of required parking spaces is set and pursuant to that method, the required number of spaces exceeded the 557 spaces planned by the petitioner … . Since the permit issued to the petitioner was invalid, it could not have conferred vested rights … . Matter of C & B Realty #3, LLC v Van Loan, 2022 NY Slip Op 05036, Second Dept 8-24-22

Practice Point: Here the petitioner was issued a permit for construction which was later revoked as invalid because it violated the town code. The “doctrine of vested rights” does not apply to the provisions in an invalid permit. Therefore petitioner’s application for a variance to build according to the provisions of the revoked permit was denied. The “doctrine of vested rights” is explained in the decision.