New York Town Law sec. 268(2) permits a town to institute appropriate actions or proceedings to restrain, correct or abate a zoning violation or to prevent illegal uses of land.  The statute provides that where the town fails to institute such action for a period of ten days after a written request of a resident taxpayer of the town, then “any three taxpayers of the town residing in the district where such violation exists, who are jointly or severally aggrieved by such violation, may institute such appropriate action or proceeding in like manner as such local officer, board or body of the town is authorized to do.” Where as in this case, the plaintiff taxpayers commenced an action more than 10 days after the Town was served with notice of the alleged violation, the plaintiffs were entitled to bring initiate the proceeding.  The fact that subsequent to the plaintiffs’ action, the Town commenced a criminal action in the local Justice Court is not a sufficient basis to dismiss the taxpayers’ lawsuit.  Furthermore, the Court held that the criminal prosecution initiated by the Town was not an “appropriate action or proceeding” as envisioned by the statute since the result of the criminal proceeding is likely to amount to punishment for alleged wrongful acts, where the plaintiff taxpayers have requested a restraint, abatement or correction of the offending use.  The appellate court remanded the matter to the trial court.

                                                     

Phair v. Sand Lake Corporation, 2008 WL 4820246 (N.Y. A.D. 2 Dept. 11/5/2008).

 

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2008/D20530.pdf