“Grandfathering” By Issuance of Building Permits
June 09, 2023
Last month, in Cuffaro v Zoning Board of Appeals of the Village of Bellport (Index # 620453/2021), the Suffolk Supreme Court reinforced the existing and binding case law that a municipality’s issuance of a building permit to a similarly situated lot effectively sanctions the subdivision of that property by deed without the requisite subdivision approval. In a strongly worded decision, the Court held that a municipality cannot rely on a supposed illegal subdivision as a basis for denying an application where it has otherwise sanctioned the subdivision by granting certificates of occupancy to its sister lot.
In Cuffaro, the Petitioners applied for a building permit to construct a single-family home on substandard lot known as 5 Gerard Street in the Incorporated Village of Bellport, New York. The Cuffaros’ lot of 30,000 square feet was created in 1978, when then-owners of a larger parcel sold off a portion of their larger lot, thereby creating two separate lots by deed. The Village Building Department denied the application because: (1) the subject property of did not conform to the Village Code’s 40,000 square foot minimum lot size and (2) was not approved in accordance with the Village’s subdivision laws, which required planning board approval for a subdivision. In response, Petitioners submitted to the Village, caselaw (Lund v Edwards, 118 AD2d 574 [2d Dept 1986] and other proof discovered through FOIL that the Village had issued five (5) certificates of occupancy for various improvements since the 1978 deed split.
Notably, no variances were sought by Petitioners, because they considered the subject property to be “grandfathered” as the Village had “sanctioned” the creation of the Petitioners’ lot by the granting of certificates of occupancy to the other lot created by the 1978 deed. Unlike a variance application, which involves an exercise of discretion, in New York it is well established that a nonconforming use that predates the enactment of a restrictive zoning ordinance is a vested right entitled to constitutional protection.
The instant matter bears a striking resemblance to facts discussed by the Court in Lund v. Edwards, 118 AD2d 574 (2 d Dept 1986). In that case, the Village Building Inspector of the Village of Head-of-the-Harbor denied the petitioner’s application for a building permit to erect a single-family dwelling on her property. The crux of the matter turned on the fact that the basis for the denial by the ZBA was that the subject parcel “was part of a larger lot which had been ‘illegally’ subdivided, i.e., subdivided without the necessary approval of the Village Planning Board 11 years before.” Id. In overturning the decision of the Board, the Appellate Division held that the Board had ‘sanctioned’ the original subdivision by deed by the issuance of building permits for one of the two lots, whether or not it had complied with the subdivision regulations when created. As a result, the Court held that “the board cannot now utilize the alleged illegal subdivision as a ground for denying the application of the petitioner.” Id.
Another case with similar parallels cited by the Court in the Cuffarro decision was Shaughessy v. Roth, 204 AD2d 333 (2d Dep’t 1994). In that case, the Court stated, “Although no final subdivision map was ever filed, the Town subsequently issued a building permit to the owner of the larger, conforming parcel, and a single-family dwelling was built. Thus, the Town’s actions effectively sanctioned the subdivision, and the Town, at least in part, contributed to the creation of the petitioners’ difficulties, by allowing the creation of the substandard lot.”
Finding that the Village of Bellport does not exist as a sui generis entity but is subject to the laws and controlling precedents of this State, the Court in Cuffarro held that the Village’s issuance of five certificates of occupancy for one of the two parcels subdivided by deed, effectively sanctioned (“legalized”) the creation of both lots notwithstanding the lack a subdivision approval by the Village. As a result, the smaller lot created by deed does not require a lot area variance, and the Village cannot use the alleged “illegal” subdivision as grounds to deny the application for a building permit.
Take Away: Cuffaro continues to support Lund’s precedent that binds a municipality to recognize the legal separateness of a lot, created only by deed, if the municipality recognized one of the lots by the issuance of certificates of occupancy.