Posted by: Patricia Salkin | November 17, 2012

NY Appellate Court Finds Ambiguity in Zoning Definition Creates Issue of Fact not Resolvable by Summary Judgment

The Town of Huntington initiated this action in an attempt to enjoin the defendant’s operation of a business.  The Town moved for summary judgment, and the Supreme Court, Suffolk County denied on two of the Town’s causes of action.  The Town appealed, and the Appellate Division, Second Department affirmed.

The defendant operated a nursery within the Town’s General Business District.  The Town Code defines a nursery as “[a]n agricultural enterprise wherein trees or shrubs or other ornamental plants are field-grown for profit.”  The Town claims the defendant is unlawfully operating the nursery because the plants sold are not grown on site.

The Town moved for summary judgment, but the Supreme Court denied on the two of the causes of action that sought injunctive relief.  The Supreme Court found the zoning language was ambiguous, and thus created a triable issue of fact that could not be resolved on summary judgment.

On appeal, the Town argued that the issue of fact created by the ambiguous language was resolved when the Town Zoning Board of Appeals denied an earlier application filed by the defendant.  The Second Department disagreed, finding the Zoning Board of Appeals’ decision was non-determinative on the issues presented by summary judgment.  Thus, the Second Department found issues of fact remained and affirmed the previous denial.

Town of Huntington v. Braun, 2012 WL 5233639 (N.Y.A.D. 2 Dept., 10/24/2012).

The opinion can be accessed here.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s


%d bloggers like this: