Furor in Cos Cob

26 Sinawoy Road. beauty is in the eye of the beholder, but …

ZBA to Review Controversial Cos Cob Single Family Construction Approved in Error

The applicant is appealing the decision of the town’s building official and zoning enforcement official for revoking his permits and, alternately seeking variances for the number of stories that require a “half-story” be limited to space under a gable, hip or gambrel roof to permit a three-story home.

…. Per the appeal, “The owner received a zoning permit on June 21, 2021 to construct a new single-family dwelling including a proposed attic story comprising 408 square ft, less than 40% of the second floor. On Dec 3, 2021, subsequent to the completion of framing and sheathing in keeping with the approved plans, zoning approval was revoked on the basis that the design of the third story was not classified as 65(a) (45.1). Half story areas were not contained under a gable, hip or gambrel roof.”

The applicant claims hardship because, “There is a practical difficulty in disassembling all, or portions of, a structure framed with engineered truss, I-joist framing, structural steel, all framed up from steel-reinforced concrete piers, which was constructed with approval from the Town of Greenwich DPW Building Inspection division and ZEO.”

The applicant said clear plans were provided at the time of the permit application, observed all procedural requirements of the Zoning and Building codes, and was responsive to Town officials’ requests. The permit approval was revoked after the structure was framed and sheathed, and the nature of the error is one of good faith misinterpretation of the Building Zone Regulations.

It’s unclear who made the “good faith mistake” in interpreting the zoning regs, but the builder doesn’t usually get a pass if it’s his error, and if it was our zoning officer’s, the builder’s still out of luck: generally speaking, a municipality cannot be “estopped’ from enforcing its zoning laws, even when a zoning officer makes a good-faith mistake. (This link goes to a discussion of NY law, but as I remember, dimly, I’m pretty sure CT law follows the same rule which, I believe, traces back to the English Common Law principle that “the King can do no wrong”.)

Estoppel is rarely applied against a local government, which allows zoning and other kinds of errors to be corrected.

Local government officials are no different from the rest of us – they can, and they do, make mistakes. Generally speaking, however, a municipality does not have to suffer the consequences of its errors.

That is because New York law is well settled that estoppel typically cannot be invoked against a municipality to preclude it from enforcing its zoning laws, to ratify administrative errors, or to prevent it from discharging its statutory duties. Of course, in those rare instances where a municipality has engaged in “fraud, misrepresentation, deception, or similar affirmative misconduct” upon which there was “reasonable reliance,” an estoppel defense may lie.

The builder is also seeking relief via a variance, pleading hardship, and he might be more successful there, maybe. Stay tuned.

UPDATE: Too good to leave buried in the comments: