
    In the Matter of Lee Pokoik, Appellant, v Arthur R. Silsdorf, as Mayor of the Incorporated Village of Ocean Beach, et al., Respondents.
    Argued October 22, 1976;
    decided December 2, 1976
    
      
      Bernard M. Rosen, Bay Shore, for appellant.
    
      J Stewart McLaughlin, Bay Shore, for respondents.
   Gabrielli, J.

This article 78 proceeding was commenced by petitioner to annul the decision of the building inspector and the determination of the Zoning Board of Appeals of the Village of Ocean Beach which denied petitioner’s application for a building permit.

The petitioner is the owner of a parcel of property with a four-bedroom dwelling in the Village of Ocean Beach. On September 28, 1972 he applied for a building permit for the purpose of adding two bedrooms, a bath and a den to his existing structure. On February 14, 1973 the Mayor of Ocean Beach advised petitioner that his application was rejected because he had previously violated the one-family zoning restriction by renting rooms in a residential district without a license; and the Mayor further stated that petitioner had not explained to the satisfaction of the village why he required additional rooms. As demonstrated herein, these assigned reasons were inadequate to support denial of an otherwise valid application; however, no permit was issued and no appeal from that decision was taken.

The petitioner then revised his plans for the alteration of his home and made application for a permit to construct an addition of one bedroom, a bath, a den and a deck. The papers were properly submitted to the building inspector on March 28, 1973; and two months later on May 21, the Mayor advised petitioner that the inspector found this application to be substantially the same as the previous one and declared that no action concerning it would be taken. The refusal of the building inspector to act was an improper dilatory tactic and an abuse of discretion. This impropriety was compounded by the apparent acquiescence of the Mayor who communicated this decision to the applicant.

Petitioner was then forced to institute an article 78 proceeding seeking an order to compel the building inspector to act on the application. Supreme Court granted such an order on December 19, 1973 and the building inspector eventually denied the application on March 9, 1974, nearly three months after the court decision and nearly a year after the second application was made. On April 8 the petitioner served a notice of appeal of the building inspector’s decision to the zoning board of appeals; and on May 6 the chairman of the board of appeals notified the petitioner that a hearing would be held on June 15, 1974. On that date the petitioner was present and ready to proceed but no one appeared on behalf of respondents and the hearing was rescheduled for June 29, following reminder by petitioner’s counsel. Again the village was guilty of unnecessary delay.

Meanwhile the board of trustees of the village had taken steps in this regard. On May 4, 1974, two days before the board of appeals notified petitioner of the date of his hearing, the trustees amended the zoning ordinance of the village to limit the size of a one-family dwelling to not more than four bedrooms. The ordinance became effective on May 19, 1974, well in advance of petitioner’s appeal hearing. Such an amendment would, of course, appear to directly affect petitioner’s building permit application.

The hearing was held on June 29 and a decision denying the application was rendered on August 3, 1974. In its decision the board took cognizance of the fact that petitioner had been guilty of violating the zoning ordinances of the village. The board also noted the recent amendment limiting a one-family dwelling to no more than four bedrooms but stated that this amendment was not the sole basis of its decision, adding that the amendment was used as evidence of the attempt by the village to limit the growth and development of the community. The appeal was denied on the further ground that petitioner failed to show any "unnecessary hardship”.

In addition, the hearing before the zoning board of appeals produced testimony from the building inspector that the petitioner’s application was a valid one at the time it was made. The coloquy between petitioner’s attorney and the building inspector was as follows:

"Q. At the time the application of March 28th was submitted, did this application comply with the lawful size according to the ordinance of the Village?

"A. Yes.

"Q. Did the application comply with acreage?

"A. Yes.

"Q. Did the application comply with setbacks?

"A. Yes.”

It is thus abundantly clear that at all times prior to the effective date of the amendment the petitioner was entitled to a building permit. His proposed addition was in all respects lawful and, as indicated by the above testimony, his application complied with the zoning restrictions. In denying the permit, the village officials relied improperly on the fact that petitioner had violated village ordinances in 1972. The fact that he had violated an ordinance previously does not show that he will violate it again. Nor is it proper for the board to punish him for any previous violation by denying him the right to expand his building within the zoning limits when he had already been prosecuted for his acts. The village has adequate means for enforcing its ordinances through civil and criminal sanctions, and cannot deny valid rights as an additional (and unauthorized) sanction. Likewise the board’s reliance on the size of petitioner’s family and his personal reasons for seeking the permit was misplaced. Where an application complies with the zoning restrictions these considerations are irrelevant. Thus the grounds for denial were without merit.

The village used dilatory tactics to discourage petitioner from seeking the building permit to which he was entitled by first refusing to act on his application and, after court proceedings directing it to act, delaying action still further. In addition, when he was finally progressing with his appeal, an amendment was passed which would serve to cut off his rights. "This administrative procrastination, calculated to deny a property owner his right to use this land in a currently lawful manner, is supportable neither by law nor by sound and ethical practice” (1 Anderson, NY Zoning Law & Practice, § 6.17, p 196).

Special Term annulled the decision of the board of appeals and ordered the issuance of a permit. The Appellate Division reversed, relying on the principle that a case must be decided upon the law as it exists at the time of the decision (Matter of Boardwalk & Seashore Corp. v Murdock, 286 NY 494; Matter of Rosano v Town Bd. of Town of Riverhead, 43 AD2d 728). Applying this principle, that court held that the amendment was controlling. However, this case fits into the "special facts exception” to that rule so that the zoning ordinance, as amended, does not apply and the arbitrary action of the board may not prevail (Matter of Golisano v Town Bd. of Town of Macedon, 31 AD2d 85). The petitioner has demonstrated that he was entitled to the permit as a matter of right by full compliance with the requirements at the time of the application and that proper action upon the permit would have given him time to acquire a vested right (Marsh v Town of Huntington, 39 AD2d 945; Matter of Golisano v Town Bd. of Town of Macedon, supra; Matter of Dubow v Boss, 254 App Div 706; 1 Anderson, NY Zoning Law & Practice, § 6.17). If action had been taken within a reasonable time after March 28, 1973 the petitioner would have had a year in which to begin construction before the effective date of the amendment. The petitioner was denied this right by the unjustifiable actions of the village officials, and by an abuse of administrative procedures. It seems clear from the record that the village imporperly delayed reviewing the application and the board presented unsatisfactory reasons for denial, resulting in the disregard of petitioner’s rights. The action of the board must be annulled as arbitrary and the relief requested granted.

The order of the Appellate Division should be reversed and the judgment of Special Term reinstated.

Chief Judge Breitel

(dissenting). I dissent and vote to affirm the order of the Appellate Division.

Of course, the courts of this State, by invocation of various equitable doctrines, have denied local authorities the benefit of delaying action on a building or other permit while zoning laws were changed to justify denial of the permit. Generally, the delay has been manipulative, the product of malice, oppression, or even corruption (see, e.g., Matter of Golisano v Town Bd. of Town of Macedon, 31 AD2d 85, 88; Matter of Dubow v Ross, 254 App Div 706, 706-707).

In every case, the applicant has been worthy and he has been mistreated by the bureaucracy, at the worst, corruptly or maliciously and, at the best, negligently (see Matter of Our Lady of Good Counsel R. C. Church & School v Ball, 45 AD2d 66, 73, affd 38 NY2d 780). In this case the positions are reversed. The local officials have been trying to control a difficult housing, sanitary, and ecological condition in a village on Fire Island. Petitioner, on the other hand, has shown a complete lack of good faith (see Matter of Jayne Estates v Raynor, 22 NY2d 417, 422-423). He has been a violator of the town’s ordinances and makes an application for an expansion of his home that is economically and practically reasonable only if he contemplates future violations. He has only recently married; yet he applied for a permit to build a fifth, and at one time a sixth, bedroom, a den, and an extra bath. His prior violations related to his operating a rooming house of a sort for so-called "groupers” with shared "investment” and shared expenses.

The doctrines of vested rights or estoppel—really estoppel— rest in the equity and justice jurisprudence of a court. They should not be invoked on behalf of one who himself deserves no relief at the hands of a court of equity. Moreover, petitioner has made no investment in reliance upon the old law or upon his expectation of receiving a permit. This is often held to be the basis for a "vested right” or the change of position on which to ground "estoppel” (Matter of Jayne Estates v Raynor, 22 NY2d 417, 422-423, supra).

The short of it is that the majority to a degree correctly states the applicable rule suspending the effectiveness of otherwise governing current law, but omits the balancing equitable considerations which have engendered the rule. The result is to turn a court-created engine of justice into a tool for the malefactor.

Accordingly, I dissent and vote to affirm the order of the Appellate Division.

Judges Wachtler, Fuchsberg and Cooke concur with Judge Gabrielli; Chief Judge Breitel dissents and votes to affirm in a separate opinion in which Judges Jasen and Jones concur.

Order reversed, with costs, and judgment of Supreme Court, Suffolk County, reinstated.  