Posted by: Patricia Salkin | November 22, 2015

NY Appellate Finds Town Law Provision Governing Taxpayer Enforcement of Zoning Does Not Apply to Transfer of Titles and That Towns Have Authority Under Zoning to Limit the Use of Recreational Facilities in a PUD to the Seniors Living There

In 1999, SBJ Associates, LLC, purchased a 382–acre parcel of property in the Town of Huntington and submitted to the Town Board of the Town of Huntington a “proposed master plan” for a residential planned use development (“R–PUD”).  On March 8, 2004, Greens at Half Hollow (“GHH”) conveyed approximately 84 acres of The Greens at Half Hollow to the defendant Greens Golf Club, LLC (“GGC”), including the combined building and its related outdoor recreational facilities. In 2011, the Greens at Half Hollow Home Owners Association, Inc. (“HOA”), for itself and on behalf of its members, the Boards of Managers of each of the five condominiums of The Greens at Half Hollow, and four individual unit owners, commenced this action against GGC and GHH, successor in interest to original developer and owner of private golf club located adjacent to the development, alleging, that successor’s transfer of community building and related outdoor recreational facilities to golf club owner amounted to theft and violated zoning ordinance’s requirement that community building and related facilities be used for exclusive use of development’s residents. The Supreme Court, Suffolk County, granted in part and denied in part plaintiffs’ motion for summary judgment and defendants’ motion for summary judgment and both parties appealed.

Town Law § 268(2) provides a mechanism by which a Town or, as here, at least three taxpayers who meet certain requirements, may enforce a zoning ordinance. However, while the statute spoke of an unlawful erection, construction, reconstruction, alteration, conversion, maintenance, use, or division of land, it did not provide for a transfer of title as a remedy. The defendants then contended that even if the individual plaintiffs may use Town Law § 268(2) to seek enforcement of this portion of Town Code § 198–21.2(F)(1)(b), it may not be enforced because the Town lacked the authority to regulate who owns or occupies land. The court found that the town does not act in excess of its authority when it creates a zoning district for senior citizens, or when it limits the occupancy of dwelling units within a planned retirement community to persons aged 55 or over. Because these were valid exercises of a town’s zoning power, the court found a town may also limit the use of a recreational facility within a senior residential community to those seniors living there. Accordingly, the Supreme Court properly granted the branch of the plaintiffs’ cross motion for summary judgment on the first cause of action seeking exclusive use of the community building portion of the combined building and its associated outdoor recreational facilities, including the swimming pool and tennis courts.

The court also found that Town Law § 268(2) did not permit a cause of action to recover damages allegedly sustained by the individual plaintiffs on account of the zoning violation or to disgorge profits obtained during the period of violation, since any such claims would be governed by the contractual relationships between the parties in the purchase agreements and incorporated documents. Additionally, the defendants were given an easement over the common areas and common elements, including roadways, walkways, and landscaped areas, for ingress, egress, and the retrieval of golf balls. The court noted that absent an express agreement, all persons benefitted by an easement must usually share ratably in the cost of its maintenance and repair. Here, the C & R Declaration and the Declaration of Condominium expressly allocated all common expenses to the unit owners according to their percentage interests in the common elements, which constituted an express agreement relieving the defendants of any such obligation. Finally, the court upheld the trial court’s holding that the covenant to pay social membership fees to GGC runs with the land so as to bind subsequent purchasers.

Greens at Half Hollow Home Owners Association, Inc. v Greens Golf Club, LLC, 2015 WL 5568995 (NYAD 2 Dept. 9/23/2015)

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