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Article 78 Proceedings

Article 78 Proceedings

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Building owners are able to commence proceedings under Article 78 to seek review of a determination of a building permit.  Prior to such application, however, the building owner must exhaust all administrative remedies within the department, pursuant to CPLR §7801(1).

In Brunjes v. Nocella, 40 A.D.3d 1088, 837 N.Y.S.2d 226 (2d Dept. 2007), for example, the petitioner applied for a building permit to modify his current establishment and convert it into a check cashing facility.  The Chief Building Plan Examiner for the Department of Buildings then revoked petitioner’s permit, citing the reason for revocation as the permit being initially issued based on inaccurate information.  The building owner subsequently commenced an Article 78 proceeding to have the court review this decision.  Pursuant to CPLR 3211(a)(7), the court dismissed the case on the ground that the petitioner failed to exhaust his administrative remedies prior to bringing a case in court.

A building owner challenging the acts of an administrative agency such as the Department of Buildings may bypass the administrative remedies requirement in some instances, however.  An exception may be made by the court if the petitioner shows that the administrative agency acted improperly.

In Brunjes v. Nocella, the court also found that the petitioner failed to demonstrate that an exception to the exhaustion of administrative remedies doctrine applied.  The examiner who revoked the permit was acting under and within the authority of the Department of Buildings and the Town of Hempstead.  Additionally, the petitioner failed to establish that further examination of the permit revocation by the agency’s Board of Appeals would prove to be futile.

Similarly, in Lucas v. Village of Mamaroneck, 57 A.D.3d 786, 871 N.Y.S.2d 207 (2d Dept. 2008), the court found that the petitioners failed to exhaust all their available administrative remedies by not challenging their village’s issuance of a building permit before the zoning board of appeals.  Instead, petitioners immediately proceeded to commence an Article 78 proceeding to review the village’s permit authorizing construction of single-family home.  The court did however, find that the village was required to make a threshold determination under the State Environmental Quality Review Act (SEQRA) as to whether issuance of building permit for construction of single-family-home was Type I, Type II, or Unlisted Action within the meaning of the regulations implementing the SEQRA.  Petitioner was not required to exhaust all administrative remedies within the Department of Buildings with regard to the latter claim.

Generally, a court only sets aside the determination of a local zoning board upon a showing that the board acted illegally, used arbitrary standards, or abused its discretion.  [Westbury Laundromat, Inc. v. Mammina, 62 A.D.3d 888, 879 N.Y.S.2d 188 [2d Dept. 2009]) Otherwise, assuming the zoning board or other administrative agency can back its decision with rational reasoning, the court will ordinarily sustain the decision and force the petitioner to resolve any disputes directly with the agency.

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