Jordan's Partners v. Goehringer

• Decision Date: 09 May 1994
• Citation: 204 A.D.2d 453,611 N.Y.S.2d 626
• Parties: In the Matter of JORDAN'S PARTNERS, et al., Appellants, v. Gerard P. GOEHRINGER, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 626

611 N.Y.S.2d 626

204 A.D.2d 453

In the Matter of JORDAN'S PARTNERS, et al., Appellants, v. Gerard P. GOEHRINGER, et al., Respondents.

Supreme Court, Appellate Division Second Department.

May 9, 1994.

Howard E. Pachman, P.C., Commack, for appellants.

Harvey A. Arnoff, Southold (Matthew G. Kiernan, of counsel), for respondents.

Before BRACKEN, J.P., and O'BRIEN, SANTUCCI and JOY, JJ.

MEMORANDUM BY THE COURT.

In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals, dated October 17, 1990, which denied the petitioners' request for a use variance, and action, inter alia, to declare that the application of an amendment of the zoning ordinance to the petitioners' property constituted an unconstitutional taking, the petitioners appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Suffolk County (Goodman, J.), dated June 20, 1991, as denied that branch of the petition which was to compel the respondent Building Inspector to rescind a stop-work order dated November 30, 1989.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The petitioners own a parcel of land on which they seek to build office space and retail stores. In 1986, their predecessor obtained site plan approval for such a development, and in 1988 the petitioners acquired title to the subject parcel. In 1989 the Town enacted a zoning amendment, effectively precluding retail uses on the subject premises. Subsequently, the Town Building Inspector issued the petitioners a building permit to construct the office and retail shopping center. However, the following month he issued a stop-work order prohibiting further construction. The stop-work order indicated that the original building permit had been issued in error because retail uses were no longer permitted in the subject district.

The petitioners responded by applying to the Zoning Board of Appeals (hereinafter the ZBA) for a use variance, but did not challenge the propriety of the stop-work order. After the ZBA denied the use variance, the petitioners commenced this hybrid proceeding and action seeking, in part, to compel the building inspector to rescind the stop-work order and reinstate the previously issued building permit. We find that the Supreme Court properly denied that branch of the petition which was to compel the Town Building Inspector to rescind the stop-work order.

At the outset, we note that in their application before the ZBA, the petitioners did not seek to have the ZBA review the propriety of the building inspector's issuance of the stop-work order. Rather, they simply applied for a use variance. Mindful of the fact that a Zoning Board of Appeals has the...