Posted by: Patricia Salkin | April 19, 2011

NY Appeals Court Holds Town May Not Use Zoning to Mandate Construction of Pool

In 2000, the Town of Huntington passed a resolution enacting an amendment to the Town Code to create a Planned United Development for a specific 382 acre tract of land that provided for single family detached dwellings, accessory uses and activities and a community building. The Town Code specifically allows for the construction of swimming pools in the single-family dwelling portion of the district.  Although the developer initially planned to construct a swimming pool, and this was included in the Final Generic Environmental Impact Statement, as discussions and plans progressed, the developer changed course, and in the final subdivision map approved in March 2002, there is a notation for the community recreation facility/common area but no specific mention of a pool.  In fact, the community recreation center was built and it consists of a playground, a tennis court and a gazebo.  In June of 2006 the Town sought to require the construction of a swimming pool, and in 2008 stipulated to discontinue the action against one party (the original owner of the parcel) but then commenced a lawsuit against the current owner to compel the construction of the pool.  The Appeals court dismissed under the doctrine of res judicata because both defendants were in privity as the matter arose out of the same series of transactions. The Court also agreed with the trial court that the FGEIS did not contain language that mandated the construction of a swimming pool on the development site.  Further, the Court said that even if the Town Code were to require the swimming pool on that lot, such a provision would be ulta vires and void as a matter of law since there is no authority in Town Law Article 16 that authorizes a town to enact a zoning ordinance which mandates the construction of a specific kind of building or amenity.

Town of Huntington v Beechwood Carmen Building Corp., 2011 WL 1205678 (N.Y.A.D. 2 Dept. 3/29/2011)

The opinion can be accessed at:

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