zoning ordinance bar in New York

1992The rule is that an appellate court must apply the law as it exists at the time of its decision unless "special facts” are present to show that the municipality, in bad faith, delayed or denied approval of a proper application while it altered the zoning ordinance to bar the prospective development (see, Matter of Pokoik v Silsdorf, 40 NY2d 769, 772-773 ; Matter of Shiloh Gospel Chapel v Roer, 170 AD2d 608 ; Matter of Hatcher v Planning Bd., 111 AD2d 812 ).

1990Bradley, however, points out that an exception to the general rule has been carved out by the courts when "special facts” are present to show that the municipality, in bad faith, delayed or denied approval while it altered the zoning ordinance to bar the prospective development (see, e.g., Matter of Triangle Inn v Lo Grande, 124 AD2d 737, 739 ; Matter of Hatcher v Planning Bd., 111 AD2d 812, 813 ).

1990Bradley, however, points out that an exception to the general rule has been carved out by the courts when "special facts” are present to show that the municipality, in bad faith, delayed or denied approval while it altered the zoning ordinance to bar the prospective development (see, e.g., Matter of Triangle Inn v Lo Grande, 124 AD2d 737, 739 ; Matter of Hatcher v Planning Bd., 111 AD2d 812, 813 ).

1988The general rule is that courts "must apply the law as it exists at the time of its decision, unless 'special facts’ are present to show that the municipality, in bad faith, delayed or denied approval of a proper application while it altered the zoning ordinance to bar the prospective development” (Matter of Triangle Inn v Lo Grande, 124 AD2d 737, 739 ; Matter of Pokoik v Silsdorf, 40 NY2d 769, 772-773 ).

2007The Court granted summary judgment dismissing the complaint on the ground that “the plaintiffs failure to ascertain for himself the restrictions of the Zoning Ordinance precludes his claim of fraudulent inducement” because the zoning ordinance “[was] not a matter peculiarly within the defendants’ knowledge and the plaintiff could have easily made inquiry as to whether it would permit him to rent the townhouse to a third party.” (Id. at 738.) In the present case, the NRT defendants are entitled to summary judgment dismissing the fraud claim as they have established that plaintiffs were not reas

1992An exception to that rule exists when "special facts” are presented to show that a municipality, in bad faith, delayed or denied permit approval while it altered the zoning ordinance to bar the prospective development (see, Matter of Magee v Rocco, 158 AD2d 53, 60 ) and where it appears that proper action on the permit would have given the applicant time to acquire a vested right (see, Matter of Pokoik v Silsdorf, 40 NY2d 769, 773 ).

1992The rule is that an appellate court must apply the law as it exists at the time of its decision unless "special facts” are present to show that the municipality, in bad faith, delayed or denied approval of a proper application while it altered the zoning ordinance to bar the prospective development (see, Matter of Pokoik v Silsdorf, 40 NY2d 769, 772-773 ; Matter of Shiloh Gospel Chapel v Roer, 170 AD2d 608 ; Matter of Hatcher v Planning Bd., 111 AD2d 812 ).

1989If the facts represented are not peculiarly within the representor’s knowledge and the other party has the means available to him of knowing by the exercise of ordinary intelligence the truth or real quality of the subject of the representation he must make use of those means or he will not be heard to complain that he was induced to enter the transaction by misrepresentation (Danann Realty Corp. v Harris, supra; Dunkin’ Donuts v Liberatore, 138 AD2d 559 ).

1989If the facts represented are not peculiarly within the representor’s knowledge and the other party has the means available to him of knowing by the exercise of ordinary intelligence the truth or real quality of the subject of the representation he must make use of those means or he will not be heard to complain that he was induced to enter the transaction by misrepresentation (Danann Realty Corp. v Harris, supra; Dunkin’ Donuts v Liberatore, 138 AD2d 559 ).

1987Where a zoning ordinance provides an exception for construction on substandard lots which have been in single and separate ownership since prior to the adoption of the ordinance, as is the case at bar, the owner may build thereon as a matter of right only if the proposed construction complies with all other provisions of the ordinance (Matter of Pellati v Scheyer, 115 AD2d 606 ; Matter of Dittmer v Scheyer, 74 AD2d 828 ).

1987Where a zoning ordinance provides an exception for construction on substandard lots which have been in single and separate ownership since prior to the adoption of the ordinance, as is the case at bar, the owner may build thereon as a matter of right only if the proposed construction complies with all other provisions of the ordinance (Matter of Pellati v Scheyer, 115 AD2d 606 ; Matter of Dittmer v Scheyer, 74 AD2d 828 ).

1986The petitioner in the instant matter had complied with the terms of the ordinance in effect at the time that it applied for a special permit and the Town Board should have granted it (see, Matter of North Shore Steak House v Board of Appeals, 30 NY2d 238, 243 ).

1986The general rule is that an appellate court must apply the law as it exists at the time of its decision unless "special facts” are present to show that the municipality, in bad faith, delayed or denied approval of a proper application while it altered the zoning ordinance to bar the prospective development (see, Matter of Pokoik v Silsdorf, 40 NY2d 769, 772-773 ; Matter of Alscot Investing Corp. v Incorporated Vil. of Rockville Centre, 64 NY2d 921 ; Matter of Hatcher v Planning Bd., 111 AD2d 812 ).

1985Nevertheless, an exception to the general rule has been carved out by the courts, namely, “village officials may not, in bad faith, delay [or deny] approval of a properly submitted and conforming building plan while they alter a zoning ordinance to bar the prospective development” (Klein Enters, v Braatz, 51 AD2d 1021, 1022 ; Matter of Gardiner v Lo Grande, 83 AD2d 614 , affd 60 NY2d 673 ; see also, Matter of Pokoik v Silsdorf, 40 NY2d 769 ; Matter of Faymor Dev.

1985Nevertheless, an exception to the general rule has been carved out by the courts, namely, “village officials may not, in bad faith, delay [or deny] approval of a properly submitted and conforming building plan while they alter a zoning ordinance to bar the prospective development” (Klein Enters, v Braatz, 51 AD2d 1021, 1022 ; Matter of Gardiner v Lo Grande, 83 AD2d 614 , affd 60 NY2d 673 ; see also, Matter of Pokoik v Silsdorf, 40 NY2d 769 ; Matter of Faymor Dev.

1985Co. v Board of Stds. & Appeals, 45 NY2d 560 ).

1985Nevertheless, an exception to the general rule has been carved out by the courts, namely, “village officials may not, in bad faith, delay [or deny] approval of a properly submitted and conforming building plan while they alter a zoning ordinance to bar the prospective development” (Klein Enters, v Braatz, 51 AD2d 1021, 1022 ; Matter of Gardiner v Lo Grande, 83 AD2d 614 , affd 60 NY2d 673 ; see also, Matter of Pokoik v Silsdorf, 40 NY2d 769 ; Matter of Faymor Dev.

1975In this respect this court respectfully differs with the Court of Special Sessions in its opinion in People v De Cinto ( 24 Misc 2d 21 ).

1975(See, also, People v Star Super Markets, 67 Misc 2d 483, 484 .) Whether the Town Law defines violation of a zoning ordinance as a violation or a misdemeanor is not material in our opinion.

1962The short answer is that until the taking authority moves affirmatively in a manner authorized by section 120 to acquire real property, the owner of that property, although he may be entitled on the basis of a zoning ordinance to claim compensation (see Soule v. State of New York, 6 Misc 2d 892 ; cf. Matter of Froehlich v. Johnson, 14 Misc 2d 33, 36 , affd. 7 A D 2d 757) is not required to do so.

1962The short answer is that until the taking authority moves affirmatively in a manner authorized by section 120 to acquire real property, the owner of that property, although he may be entitled on the basis of a zoning ordinance to claim compensation (see Soule v. State of New York, 6 Misc 2d 892 ; cf. Matter of Froehlich v. Johnson, 14 Misc 2d 33, 36 , affd. 7 A D 2d 757) is not required to do so.