In this Article 78 proceeding, petitioner seeks judgment reversing the determination by respondent dated March 9, 2009, wherein petitioner's application, for a variance from the maximum height requirements set forth in Section 200-55 of the Zoning Code of the Village of Garden City for his new 2-car garage, was denied.

The motion by respondent for an order pursuant to CPLR 7804(f) dismissing the complaint for failure to state a cause of action is denied.

Petitioner is the owner of property located at 9 Pell Terrace in Garden City, New York. The property is an irregular lot, improved with a single family dwelling. Petitioner was in the process of having a detached 2-car garage with a gabled roof constructed on the property. Above the two car parking area, a large storage space was planned with a pitched roof with dormers.

A "stop work" order was issued on September 19, 2008, when the Village realized that the height of the garage would be 20.35 feet at the midpoint, or 5.35 feet above what is permitted by the Code. At the time that the "stop work" order was issued, the foundation and foundation [*2]walls were poured, the garage was framed and sheeting was completed. Inspections by the Village Building Department had taken place on two occasions, and the foundation had passed inspection.

Petitioner had received a building permit, but the permit was based upon drawings that did not show that the garage was being built in an area which had a severe slope to the rear. For construction on sloping land the height is measured differently from construction of a gabled roof generally.

In December 2008 petitioner sought a variance for the garage. A hearing was held on February 24, 2009, and thereafter the Board issues its denial of petitioner's application for a variance.

The Board seeks judgment dismissing the petition for failure to state a cause of action because petitioner does not address Village Law and the requirements for a determination on an application for a zoning variance as set forth in Village Law �7-712-b(3)(b). However judicial review of a determination by a local zoning board is the proper subject of an Article 78 proceeding. Such review is limited to determining whether the action taken by the board was illegal, arbitrary and capricious, an abuse of discretion [Matter of Ifrah v Utschig, 98 NY2d 304, 308 (2002); Matter of Allstate Properties, LLC v Board of Zoning Appeals of the Village of Hempstead, 49 AD3d 636 (2nd Dept. 2008), lv app den 12 NY3d 711 (2009); Halperin v City of New Rochelle, 24 AD3d 768, 771 (2nd Dept. 2005), lv app dsmd 6 NY3d 890 and 7 NY3d 708(2006)]. Petitioner alleges that the Board's action in denying him a variance, after granting a permit and performing two inspections, was arbitrary and capricious. The petition plainly states a cause of action for Article 78 relief. Consequently, the Board's motion is denied.

Since the dispositive facts are undisputed, the arguments of the parties are fully set forth, and the minutes of the hearing before the Board and of the Board's vote are provided, in the interests of judicial economy the court shall make a decision on the merits by deeming the Board's motion papers to be the Board's answer [see Matter of Dougherty v Mammina, 261 AD2d 400 (2nd Dept. 1999); see also Matter of Intermor v Board of Trustees of the Inc.Village of Malverne, 286 AD2d 330 (2nd Dept. 2001)].

Assuming the truth of petitioner's allegations that he "acted, as directed by the Village at all times" and that his injury is "the direct result of the failure on the part of the Building Department to act properly," estoppel is not available to preclude a municipality from enforcing the provisions of its zoning laws and the erroneous issuance of a permit does not estop a municipality from correcting errors, even where the results are harsh [Matter of Parkview Associates v City of New York, 71 NY2d 274, 282, cert den 488 US 801 (1988); Westbury Laundromat Inc. v Mammina, 62 AD3d 888, 890 (2nd Dept. 2009); see Matter of Marino v Smithtown, 61 AD3d 761, 763 (2nd Dept. 2009)]. Furthermore, vested rights cannot be acquired in reliance upon an invalid permit [Westbury Laundromat Inc.; Incorporated Village of Asharoken v Pitassy, 119 AD2d 404, 416-417(2nd Dept. 1986), lv app den 69 NY2d 606 (1987)]. [*3]

Petitioner's request for a variance, in order to finish and maintain his garage, is governed by Village Law 7-712-b(3)(b), which sets forth five factors to be considered by the Board: (1)whether an undesirable change in the character of the neighborhood or a detriment to neighboring properties will result; (2) whether the benefit can be achieved by some other feasible method; (3) whether the requested area variance is substantial; (4) whether an adverse impact upon the physical or environmental conditions in the neighborhood will result; and (5)whether the alleged difficulty is self-created [Village Law 7-712-b(3)(b); Matter of Ifrah, at 307-308; Gallo v Rosell, 52 AD3d 514 (2nd Dept. 2008); Matter of Allstate Properties LLC, at 637].

In this case, the minutes of the hearing and the minutes of the Board's vote demonstrate that the Board members reasonably considered the factors required. The Board's conclusion, that the variance sought exceeds the allowable height by 33%, and that as built, the garage is out of character with respect to other structures in the Village, is neither irrational nor arbitrary [see Percoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 614-615 (2004); Corigliano v Zoning Board of Appeals of City of New Rochelle, 18 AD3d 750 (2nd Dept. 2005)].

For the record, the photos of the garage (annexed as part of Exhibit B to respondent's motion papers) capture the meaning of a Board member's comment that "it almost gives the appearance that there is ongoing construction of almost a second home in between your property and the property to your south." In addition, the Court notes the Board's argument that petitioner may construct a garage as of right, without a variance, by simply lowering the proposed height.

Based on the foregoing, the petition is denied and this proceeding is dismissed.

Settle order and judgment on notice.

Dated: ______________ ________________________________

J.S.C.