The Appellate Division of the State Supreme Court restored a previously revoked building permit issued to construct a garage, which had been completed prior to revocation of the permit. In Matter of Veece v. Town of Babylon the Court held the combined Article 78 proceeding and declaratory judgment action was not time barred. The Court found the action was not based upon an appeal of the 1994 revocation of the building permit but rather the appeal of the 2003 Zoning Board of Appeals (ZBA) denial of a request for renewal of the permit and area variances. The action was brought within 30 days of the ZBA decision.
The property owner was held to have a protected interest in the permit as it was legally issued, substantial improvements had been performed based upon the permit and the permit was illegally revoked. The Court further found that the zoning as it existed in 1993 should be applied and therefore the only variance needed was for two tenths of a foot which the Court said should have been granted as it is a de minimus variance.
The decision applies long standing rules of vested rights but unfortunately the decision does not disclose the rationale for revoking the permit or why the Court held the permit was improperly revoked if, even under the 1993 zoning, an area variance was required, albeit a de minimus variance.