Posted by: Patricia Salkin | November 3, 2012

NY Appellate Court Overturns Preliminary Injunction as Academic

Hampton, LLC, received a special use permit from the Zoning Board of Appeals and the Design Review Board of East Hampton (collectively hereinafter “the Boards”).  However, this permit was granted on condition.  Hampton, in this sister action to Hampton v. Rickenbach, challenged these conditions before the Supreme Court, Suffolk County, which annulled the conditions and preliminarily enjoined their enforcement.  The Boards appealed this judgment and order to the Supreme Court, Appellate Division, Second Department.  The Second Department modified the judgment, overturning the preliminary injunction as academic.

In this matter, Hampton sought a special use permit that would allow it to operate a restaurant with an outdoor dining area.  The special use permit was granted by the Boards, but with conditions that were more onerous than those placed upon a similarly situated establishment.  Upon Hampton’s petition, the Supreme Court annulled the more onerous conditions while also enjoining the enforcement of the same conditions.

The Second Department affirmed the ruling of the Supreme Court insofar as the order annulled the more onerous conditions.  The court provided that where a local government body treats two similarly situated land uses differently, the local government body must provide adequate reasons for this disparity.  If sufficient justification is not provided, then the different conditions must be annulled as arbitrary and capricious.  Here, there court found the uses where similarly situated, but that there was no justification for the different treatment, and, thus, these conditions where annulled.

However, the Second Department modified the Supreme Court’s order, as the grant of the preliminary injunction had become academic.  Since the Supreme Court made a determination as to the merits of the case – annulling the conditions – a preliminary injunction prohibiting the enforcement of the same conditions was academic and unnecessary, as those conditions where no longer valid or enforceable.  Thus, the Second Department modified the judgment, deleting the language granting the preliminary injunction.  In light of this determination, the court did not address the parties’ other contentions, providing they had become academic, as well.

Hamptons, LLC v. Zoning Bd. App. of East Hampton, 98 A.D.3d 738 (2nd Dep’t, Aug. 29, 2012)

The opinion can be accessed here.


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