Opinion
199 A.D.2d 983 608 N.Y.S.2d 20 Matter of Timothy R. SEKUTERSKI and Sally Sekuterski, Respondents, v. VILLAGE OF LANCASTER, Village of Lancaster Zoning Board of Appeals and Fred C. Evert, Code Enforcement Officer, Village of Lancaster, Appellants. Appeal No. 1. Supreme Court of New York, Fourth Department December 29, 1993.
Arthur A. Herdzik, Lancaster, for appellants.
Di Filippo, Bennetts&sDaumen by Michael Daumen, East Aurora, for respondents.
Before DENMAN, P.J., and PINE, LAWTON, DOERR and BOEHM, JJ.
MEMORANDUM:
The court erred in directing respondent Village of Lancaster Zoning Board of Appeals to issue petitioners a variance with respect to their garage. The fact that petitioners built the garage based on an erroneously issued building permit does not estop respondents from enforcing the applicable zoning laws (see, Matter of Parkview Assocs. v. City of N.Y., 71 N.Y.2d 274, 282, 525 N.Y.S.2d 176, 519 N.E.2d 1372, rearg. denied 71 N.Y.2d 995, 529 N.Y.S.2d 278, 524 N.E.2d 879, cert. denied 488 U.S. 801, 109 S.Ct. 30, 102 L.Ed.2d 9). The "rare exception" to the unavailability of estoppel cannot be applied where petitioners, with reasonable diligence, could have found the error (Matter of Parkview Assocs. v. City of N.Y., supra, 71 N.Y.2d at 279, 525 N.Y.S.2d 176, 519 N.E.2d 1372). The photographs submitted to the court establish that there is a substantial detriment to the neighbors' property (see generally, Matter of Children's Hosp. of Buffalo v. Zoning Bd. of Appeals, 181 A.D.2d 1056, 1057-1058, 582 N.Y.S.2d 317). It cannot be said that the denial of the variance was illegal, arbitrary or an abuse of discretion (see, Matter of Fendelman v. Zoning Bd. of Appeals, 178 A.D.2d 478, 577 N.Y.S.2d 138). Thus, we reverse the judgment and dismiss the petition seeking a variance.
Judgment unanimously reversed on the law without costs and petition dismissed.