Posted by: Patricia Salkin | May 26, 2009

Neighbors Challenge Board Procedures for Zoning Amendments Allowing Special Use Permit for Arborist and Landscaping Services

In what can best be characterized as long and protracted litigation over the use of property in the Village for a plant nursery and arborist business, the Village reached a stipulation agreement with the property owner, “so ordered” by the Village Justice in April 2003, whereby the Village agreed to dismiss the charges against the property owner (for operating a use in violation of the zoning law since it had been previously determined through litigation that the use was not a preexisting legal nonconforming use) and the Village agreed to refrain from taking “any governmental action” related to the owner’s use of the property, with certain enumerated limitations, while the village considered adopting an amendment to the zoning law for purposes of creating a special permit use in the zoning district where the property was located. It was also agreed that in the event the special permit amendment was not adopted, the owner would wind up business operations at the premises.

In June 2006 the Village adopted a local law to allow “arborist services, landscaping services, and/or wholesale industries” as a special permit use within the applicable zoning district. The local law was filed with the Secretary of State on July 3, 2006.

Neighbors brought a lawsuit alleging procedural and substantive challenges to the Board’s action in entering into the stipulation with the owner. The owner and the Board separately moved to dismiss alleging, among other things, that the action was time-barred and that it failed to state a legitimate cause of action. The trial court dismissed 10 of the 12 causes of action.

On appeal, the Court found that the cause of action alleging that the Board violated the State Environmental Quality Review Act in enacting the local law was not time-barred, since it was filed within the four-month statute of limitations for when the law took effect. The Court pointed out that local laws do not become effective until they are filed with the Secretary of State. In this case, while the law was adopted in June, it was not filed until July 3, 2006. The action was commenced on October 27, 2006 – within the four month time period. For the same reason, the Court reinstituted two other causes of action which the trial court had ruled were time barred.

Further, the Court found that the trial court improperly dismissed the cause of action relating to alleged failure to comply with General Municipal Law (GML) 239-m(6), requiring the Village to refer a proposed zoning action to a county planning agency for review, and that within 30 days after the final action, the referring body is required to file a report of the final action it has taken with the county planning agency. The appeals court noted that while the Board did submit evidence that is did make the initial referral before adopting the resolution for the local law, no evidence was proferred that the Village complied with the filing requirement of GML 239-m(6).


Marcus v. Village of Wesley Hills, 2009 WL 1350351 (N.Y.A.D. 2 Dept. 5/12/2009).


The opinion can be accessed at:

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