Potential illegal use

Can a building permit be denied for potential illegal use?

While reviewing plans for a building permit, code and zoning officials often raise objections citing potential for future illegal use due to proposed work.  Is that justified? 

Some of you may recall an incident where late Senator Robert Kennedy argued against arresting anyone before they broke a law.  In a public hearing in California, he sparred with County Sherriff LeRoy Gaylen for arresting union organizers who had not committed a crime.  “How can you go arrest somebody if they haven’t violated the law?” Kennedy asked the Sheriff.  The Sherriff responded that they were about to violate the law.  Kennedy shot back and asked them to read the constitution first. 

Objecting to issue a building permit based on future illegal use is like arresting someone because they may commit a crime in the future or like issuing a traffic ticket to someone because they may exceed stated speed limit one day.  In all cases no laws were broken but the enforcing officer was making wild assumptions about what could happen in the future. 

If someone proposes to finish a basement in a single family home for their own needs, is it fair for code and zoning officials to assume that they are trying to create an illegal dwelling unit and object to issuing a building permit?  Such objections are typically not raised for multimillion-dollar homes because of the assumption that someone living in such homes would not need an illegal dwelling unit.  However, homes in poorer neighborhoods are more likely to face such objections.  The bias appears to be against economically poorer communities often occupied by minorities and immigrants.

In a 1989 case involving NYC Department of Buildings’ decision to deny a building permit, the Supreme Court of New York ruled that a building permit cannot be denied based on future illegal use.  In the matter of Di Milia v. Bennett, 149 A.D. 2d 592, 593 the court ruled that the standard to be applied is “the actual use of the building in question, not its possible future use.”  The ruling was consistent with matter of Baskin v. Zoning Bd. Of Appeals of Town of Ramapo, 40 N.Y.2d 942 (1976); and Kam Hampton I Realty Corp. v. Board of Zoning Appeals, 273 A.D.2d 385, 387 (2d Dep’t 2000).

It is important for code and zoning officials to base their decisions on what is shown on plans without coloring their judgement with biases. Otherwise they are subject to legal challenges for rendering decisions that are arbitrary and capricious.

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