Defective Zoning Notice Voids Variances and Precludes Vested Rights
Commentary on Matter of Socha v. Town of Starkey, 2025 NY Slip Op 03431 (4th Dept 2025)

Introduction

The Fourth Department’s decision in Matter of Socha v. Town of Starkey addresses the seemingly routine world of local zoning but establishes two consequential principles:

1. A zoning board of appeals (“ZBA”) lacks jurisdiction where statutorily-required notice is materially defective; any variance or permit issued in that posture is void ab initio.
2. Because a void permit cannot give rise to vested rights, property owners may not rely on such instruments—nor on earlier valid instruments—to justify substantially different construction.

Sean and Christa Socha (“petitioners”) purchased lakeside property in the Town of Starkey, Yates County. They applied in 2021 for a use variance to replace a modest 10 × 14-foot shed (authorized in 2004) with a significantly larger 14 × 18-foot structure standing approximately 15 feet high on a two-foot platform. A variance was granted, a building permit followed in 2022, and the new shed (“Lakeview shed”) was built. The problem: the 2021 variance proceeding was noticed to the wrong neighbors because petitioners listed an incorrect tax-map number and address. When the defect came to light, a fresh application was filed—but ultimately denied—prompting the hybrid CPLR Article 78/declaratory judgment challenge that culminated in this appellate decision.

Summary of the Judgment

The Appellate Division unanimously:

• Modified Supreme Court’s dismissal into a declaratory judgment as required in hybrid declaratory-judgment pleadings.
• Declared the 2021 variance and the derivative 2022 building permit “illegal and void.”
• Held that any vested rights arising from the 2004 approvals did not extend to the much larger 2022 shed.
• Upheld the ZBA’s 2022 denial of a new variance as rational and non-arbitrary.

In short, the Sochas must remove the Lakeview shed; their remedy lies, if at all, in seeking a conforming structure or legislative relief.

Analysis

A. Precedents Cited and Their Influence

1. Matter of Retoske v. Boettger, 249 A.D. 624 (2d Dept 1936)
   • A seminal case holding that failure to give required public notice divests a ZBA of jurisdiction. The Fourth Department borrowed this language verbatim (“no public notice [was] given of intention to ask for a variance”) to classify the 2021 variance as jurisdictionally void.
2. Matter of Buffalo Cremation Co. v. March, 222 A.D. 447 (4th Dept 1928), aff’d 249 N.Y. 531 (1928)
   • Reinforces that administrative acts contrary to statutory mandates are “illegal and void.” Cited to buttress the proposition that the defective notice could not be overlooked as a mere irregularity.
3. Town of Orangetown v. Magee, 88 N.Y.2d 41 (1996)
   • Establishes that vested rights cannot flow from void or revoked permits. Applied here to dispose of petitioners’ substantive-due-process argument.
4. Matter of Raynor v. Landmark Chrysler, 18 N.Y.3d 48 (2011)
   • Sets the modern test for a substantive-due-process claim (a cognizable property right + conduct wholly lacking legal justification). The court found the first prong unmet because no lawful property right arose from a void permit.
5. Procedural precedents (Restuccio v. City of Oswego, Schlossin v. Town of Marilla)
   • Clarify that when declaratory relief is sought, the court must declare the parties’ rights instead of simply dismissing. This technical correction underscores proper judgment drafting across the state.

B. The Court’s Legal Reasoning

1. Defective Notice = No Jurisdiction
   Town Law § 267-a(7) and the Town of Starkey Zoning Regulations § 7.72 require (i) published notice and (ii) mailed notice to owners within 1,000 feet. Because petitioners supplied the wrong tax-map number and address, owners nearest the Lakeview Road parcel were not warned. The court characterized the defects as “comprehensive,” defeating the statutory purpose of informing interested neighbors and thereby stripping the ZBA of power to act.
2. Void Acts Cannot Create Vested Rights
   Even assuming petitioners possessed vested rights in earlier 2004 approvals, those rights applied strictly to the smaller shed described in that paperwork. The vastly larger Lakeview shed lay outside the scope of the 2004 instruments. As to the newer approvals, because they were void, they were legal nullities that could not ripen into protected property rights.
3. Substantive Due Process Argument Fails
   Lacking a “cognizable” property interest, petitioners could not advance a substantive-due-process claim predicated on deprivation of that interest; thus, the second prong (governmental action wholly without legal justification) was moot.
4. ZBA Denial of 2022 Application Was Rational
   Applying Town Law § 267-b(3)(b)’s five-factor balancing test, the court found substantial evidence supporting the ZBA’s denial: safety concerns on the turnaround area, drainage impacts, neighborhood character, and availability of feasible alternatives (a smaller shed). The fact that contrary evidence existed did not authorize judicial substitution of judgment.
5. Form of Judgment
   Because the action sought declaratory relief, mere dismissal was error. The Fourth Department modified the judgment to declare the parties’ rights—a procedural nuance with statewide significance for litigators.

C. Potential Impact on New York Zoning and Administrative Law

• Heightened Attention to Notice Compliance
  Municipalities and applicants alike will scrutinize tax-map numbers, addresses, and mailing lists. Counsel who overlook such details risk having their clients’ permits invalidated even after construction is complete.
• Narrow Construction of Vested Rights
  Developers often argue that any shovel in the ground vests rights. Socha reaffirms that “rights” vest only when the underlying permit is legal and the construction conforms to that permit in scale, use, and character.
• Template for Challenging Overbuilt Structures
  Neighboring landowners now have a clearer litigation roadmap: (1) scrutinize notice, (2) challenge jurisdiction, and (3) contest expansions that exceed prior variances.
• Procedural Reminder on Declaratory Relief
  Trial courts throughout New York must provide explicit declarations rather than dismissals in hybrid Article 78/declaratory actions, reducing appellate corrections.

Complex Concepts Simplified

Variance

Permission to depart from zoning rules (e.g., use, size, setback) granted by a ZBA.

Use Variance

A variance that allows a land use not ordinarily permitted in a zoning district.

Void ab initio

Latin for “void from the outset.” A legal act that never had any validity, as if it never existed.

Vested Rights

When a landowner undertakes substantial construction in reliance on a valid permit, the right to continue may “vest” and become immune to later zoning changes—but only if the permit is lawful.

CPLR Article 78

A special proceeding to challenge the actions (or inaction) of state and local agencies, including ZBAs.

Declaratory Judgment

A court’s binding pronouncement clarifying the legal rights or obligations of parties, without necessarily awarding damages or coercive relief.

Conclusion

Matter of Socha v. Town of Starkey underscores that procedural niceties—particularly notice—are jurisdictional prerequisites, not optional hoops. A variance granted without proper notice is null and void, cannot mature into vested rights, and leaves any construction vulnerable to removal. The decision also reminds practitioners that vested rights are tethered to the specific approvals issued and do not automatically escalate to larger or different structures. Finally, the Fourth Department reinforces that courts faced with hybrid Article 78/declaratory actions must declare rights, providing clarity and finality to the litigants and to future courts analyzing the scope of administrative authority.

In the broader legal context, the ruling strengthens the procedural foundation of zoning practice across New York, offering a cautionary tale to applicants, boards, and counsel: meticulous compliance today prevents costly demolition tomorrow.