Sekuterski v. Village of Lancaster ( 1993 )

Judgment unanimously reversed on the law without costs and petition dismissed. 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 New York, 71 NY2d 274, 282, rearg denied 71 NY2d 995, cert denied 488 US 801). 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 New York, supra, at 279). The photographs submitted to the court establish that there is a substantial detriment to the neighbors’ property (see generally, Matter of Children’s Hosp. v Zoning Bd. of Appeals, 181 AD2d 1056, 1057-1058). 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 AD2d 478). Thus, we reverse the judgment and dismiss the petition seeking a variance. (Appeal from Judgment of Supreme Court, Erie County, Mintz, J.—Article 78.) Present—Denman, P. J., Pine, Lawton, Doerr and Boehm, JJ.