Posted by: Patricia Salkin | September 3, 2018

NY Appellate Court Dismisses Town’s Appeal of Special Permit Conditions Due to Lack of Aggrievement

This post was authored by Amy Lavine, Esq.

The New York Appellate Division, Fourth Department dismissed an appeal involving zoning restrictions on alcoholic beverage sales in a memorandum decision issued in June. The special permit at issue prohibited the plaintiff from serving food or beverages on an enclosed porch, and the trial court ruled in favor of the town and upheld the permit restrictions. The town nevertheless appealed, apparently based on an incorrect reading of the trial court judgment. As the court explained, the judgement did not in fact declare that the alcohol restrictions were preempted by the state’s Alcoholic Beverage Control Law, nor did it prevent the town from enforcing those restrictions. Rather, the judgment merely stated that the exclusive authority to grant liquor licenses was vested with the State Liquor Authority, a point that had already been conceded by the town. The remaining issues, the court noted, were “entirely favorable” to the town, and thus the town was not aggrieved by the judgment. Lest there be any further confusion, the court emphasized that “the fact that the judgment ‘may contain language or reasoning which [defendants] deem adverse to their interests does not furnish them with a basis… to take an appeal.'” The court additionally found that the instant appeal was nonjusticiable and essentially sought an “inappropriately rendered advisory opinion” due to the fact that the underlying petition had already been resolved and the prior order was not timely appealed.  Accordingly, the court directed the judgment to be vacated “in order to prevent it from ‘spawning any legal consequences or precedent.'”

Olney v Town of Barrington, 162 A.D. 3d 1610 (4th Dept. 6/15/2018)


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