Posted by: Patricia Salkin | June 23, 2012

NY Appellate Court Affirms Decision of Village Board to Sell Land Without Approval of New York State Legislature and Upholds Granting of Variances

Levine owned a home adjacent to waterfront property owned by the Village of Island Park. After a title search revealed that there was surplus property unused by the public, the Village of Island Park Board of Trustees adopted a resolution approving the sale of the land to Joseph Balabanick. Balabanick filed an application for area variances to allow him to construct a home on the property, which was granted by the Board.

Levine claimed the Board’s resolution approving the sale of the property without the approval of the New York State Legislature is null and void and has no effect. Levine asserted that the property had been impliedly dedicated as parkland which, under the public trust doctrine, could not be sold without legislative authorization. The Supreme Court denied the claim on the basis that the property was not a park and could be sold freely by the Village. Levine also commenced an action to review the Board’s determination in granting the variance application, which was also not granted by the court.

Property can become a park expressly, through deed restrictions or legislative enactment or by implication, such as continuous use as a park. Whether or a not a property has become a park is a question of fact which must be proved by the party asserting the land has been dedicated for public use. Here, Levine failed to establish that the property had been expressly or impliedly dedicated as a park. Therefore, the Appellate Division affirmed the Supreme Court’s decision to deny Levine’s motion for summary judgment.

In addition, the Appellate Division determined that the Supreme Court was correct in concluding that the Board was not acting illegally when it granted the application for area variances since the Board properly considered the statutory factors, engaged in the required balancing test, and considered the relevant factors.

Levine v. Village of Island Park Board of Zoning Appeals, 2012 WL 1699325 (NYAD 2 Dept. 5/15/2012)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2012/D34818.pdf


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