Posted by: Patricia Salkin | April 5, 2016

NY Appellate Court Reverses Dismissal of Action by Citizen Taxpayers to Enjoin the Defendant from Using the Subject Property for the Receipt of “Land-Clearing Debris, Including Trees, Brush, Stumps and Leaves”

Plaintiffs Joseph Phair, Margot Gilman, and Amelia Doggwiler were resident taxpayers of the Town of Southampton. In 2005, they commenced this action to enjoin the defendant, Sand Land Corporation, pursuant to Town Law § 268(2), from certain uses of its property. The Plaintiffs alleged that certain current uses of the property, located in a residential district, violated the Town’s zoning code. Specifically, in the first and second causes of action, the Plaintiffs sought to enjoin Sand Land from using its property for the annual receipt of “thousands of tons” of clearing debris, including trees, brush, stumps, and leaves; the processing of such clearing debris into topsoil and mulch; the storage, sale, and delivery of mulch, topsoil, and wood chips; and the receipt, processing, and/or disposal of concrete, demolition debris, asphalt pavement, brick, rock, and metals. In this case, Plaintiffs appealed from an order of the lower court granting a motion to dismiss while Sand Land’s CPLR article 78 challenge to the ZBA’s determination was pending. During the pendency of this appeal, the lower court granted Sand Land’s petition, finding that the processing of brush, trees, stumps, leaves, and other clearing debris, and the sale of topsoil, mulch, and wood were not legal preexisting nonconforming uses.

Since that holding, the Plaintiffs acknowledged that with respect to these specific uses, because the local officials found no zoning violation, there was no “official lassitude or nonfeasance in the enforcement of zoning laws which citizen taxpayers may overcome” and no action pursuant to Town Law § 268(2) could be maintained. However, the ZBA made no such “legal pre-existing nonconforming use” finding with regard to the use of the property for the processing of trees, brush, stumps, leaves, and other land-clearing debris. Since there was no finding by the zoning officials that these uses were legal, the court found that there was no reason why either the Town or the citizen taxpayers could not seek to enforce compliance with the zoning code in an action brought pursuant to Town Law § 268(2). As to the second cause of action, since Sand Land made no claim that the plaintiffs could not prove special damages, and Sand Land offered no other ground for dismissing the common-law claim in its entirety, the court likewise court the claim was not rendered academic. Accordingly, the dismissal of these two causes of action was reversed.

Phair v Sand Land Corporation, 2016 WL 1230840 (NYAD 2 Dept. 3/30/2016)


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