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)

On December 11, 2013, 34 Cove, LLC, applied to the Zoning Board of Appeals of the Town of Southampton, for area variances which would permit it to build a tennis court in the front yard of its nonconforming lot. After a hearing, the Zoning Board granted 34 Cove’s application. The petitioner, who opposed the application, commenced this CPLR article 78 proceeding seeking review of the determination granting the application. 

At the outset, the court noted that the Zoning Board engaged in the required balancing test and considered the relevant statutory factors. It agreed with the petitioner that the alleged difficulty was self-created, and that proposed variances were substantial. However, the court found no evidence that the granting of the variance would produce an undesirable change in the character of the neighborhood, have an adverse effect on physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community. Furthermore, the Zoning Board had the authority, pursuant to section 330–76(c) of the Code of the Town of Southampton, to grant a variance to permit construction of the tennis court on a nonconforming lot without a principal structure. Since the Zoning Board’s decision was supported by a number of these factors, the court found its decision neither arbitrary nor capricious. As a result, it held the Supreme Court properly denied the petition and dismissed the proceeding. 

Borrok v Town of Southampton, 130 S.D. 3d 1024 (NYAD 2 Dept. 7/29/2015)


The subject property owned by John and Melissa Sidari, was located in a residential zoning district where commercial uses are not permitted, but had been used for commercial purposes since the 1950s. In 2005, the Sidaris applied for and received a permit to erect a pole barn on the property to store commercial trucks and equipment in connection with their excavation business on the property. The Sidaris applied for a non-conforming use certificate, which the township’s Zoning Officer issued on November 3, 2011. The Estate of Adrian Slusser owned property adjacent to the Property. James Slusser and Elizabeth Mancuso, who are husband and wife, also owned a nearby property. Objectors appealed the issuance of the certificate to the Zoning Board. At the hearing before the Zoning Board, James Slusser stated that he could see the Property without any obstruction and had noticed an increase in truck movement and noise. The Zoning Board dismissed Objectors’ appeal as untimely, finding that they had reason to know of the approval of the nonconforming use certificate prior to April 5, 2012. Objectors appealed to the trial court, which denied their appeal.

Objectors contended that their May 4, 2012, land use appeal was timely because they filed it within 30 days after they first learned on April 5, 2012, that the Sidaris had obtained a non-conforming use certificate. However, the court found that the Objectors were not entitled to appeal the issuance of the non-conforming use certificate under the Pennsylvania Municipalities Planning Code (MPC); therefore, the issue of whether Objectors’ appeal was timely was irrelevant. Here, the purpose of the non-conforming use certificate was to document the existence of the non-conforming use, not to authorize either development or construction. Since the approval of the certificate did not grant the Sidaris any additional property rights or authorize new development or construction, the court held that the Zoning Officer’s issuance of the certificate was not appealable under Section 914.1.

Slusser v Black Creek Township Hearing Board, 2015 WL 5567968 (PA Commwlth 9/23/2015)

In 2009, the petitioner, Merriam Farm, Inc., applied to the Town’s Select Board, pursuant to RSA 674:41 for a building permit to construct a single-family home on the property. The Select Board denied the application because the property lacked frontage on a Class V or better road. The petitioner appealed to the ZBA, and the ZBA denied relief. In 2013, the petitioner applied to the ZBA for a variance from the frontage requirement in the Town’s zoning ordinance in order to build a single-family residence on the property. The ZBA denied the application, and the petitioner appealed to the trial court. The Town asserted that the petitioner’s application for a variance was barred by the doctrines of claim preclusion and preemption. The petitioner argued that the Town waived its claim preclusion argument and that the ZBA improperly applied the statutory criteria governing variances under RSA 674:33, I(b). The trial court held that the Town did not waive its claim preclusion argument, and the petitioner’s previously unsuccessful application for a building permit under RSA 674:41 precluded the ZBA from considering the petitioner’s variance application.

Claim preclusion would apply if: the parties are the same or in privity with one another; the same cause of action was before the court in both instances; and the first action ended with a final judgment on the merits. In determining whether two actions are the same cause of action for the purpose of applying res judicata, the court considered whether the alleged causes of action arose out of the same transaction or occurrence. In its prior appeal, the petitioner sought a “reasonable exception” pursuant to RSA 674:41, and was required to demonstrate that enforcement of the provisions in RSA 674:41 would have entailed “practical difficulty or unnecessary hardship.” However, the petitioner did not need to demonstrate that it met all of the statutory requirements for a variance in that appeal. The petitioner could not have included variance issues in its trial court appeal of the ZBA’s denial of its building permit application since the ZBA, as opposed to the trial court, decides in the first instance whether to issue a variance. Because the petitioner was required to bring its variance application before the ZBA in an action separate from its appeal to the trial court of the denial of its building permit application, res judicata did not apply. The court therefore reversed, concluding that the denial of the petitioner’s application for a building permit gave rise to a cause of action different from the denial of its variance application.

Merriam Farm, Inc v Town of Surry, 2015 WL 5559892 (NH 9/22/2015)

Defendant, Edward C. Furlong, III, appealed an order of the Circuit Court awarding judgment in favor of the plaintiff, the Town of Bartlett, in a zoning enforcement action. The defendant owned property in Bartlett, on which he began to renovate in the fall of 2008. The Bartlett Board of Selectmen notified him: by letter, by cease and desist notice, and in person at a board of selectmen meeting, that he needed a building permit for the renovations. The cease and desist notice informed the defendant that he had violated Bartlett’s zoning ordinance, that he must cease all construction, and that he had the right to appeal to the Bartlett Zoning Board of Adjustment. The defendant submitted two incomplete applications for a building permit and completed the renovation work without a permit. On December 12, 2008, the Board of Selectmen filed a land use citation complaint in the district court, which advised the defendant that he could be fined $275 for the first day and $550 for every day the violation continued. The defendant filed a motion to dismiss, and the trial court dismissed the land use citation, finding that the zoning ordinance was unconstitutional. The Town appealed, the court reversed the trial court’s decision in part, vacated it in part, and remanded the case to the trial court. 

The defendant argued that the fine should be reversed because the trial court did not have jurisdiction to impose a penalty greater than $25,000, and that the court denied him due process of law by not granting a new hearing in light of the withdrawal of his attorney. The Town responds that the trial court did grant the defendant another hearing after his attorney withdrew, which the defendant did not attend, and that it was within the court’s discretion not to grant a third hearing. The court found that in this civil proceeding, the defendant had no constitutional right to counsel. Here, the attorney withdrew well before the hearing, and the trial court could have determined that the defendant was aware of the withdrawal and had ample time to secure other counsel if he desired to do so. Furthermore, the defendant did not show that his case was prejudiced in any way. Therefore, there was no basis for upsetting the judgment of the court. 

The defendant next argued that the trial court erred by imposing a $344,025 fine pursuant to RSA 676:17. The Town responded that RSA 676:17 was amended shortly after the court’s ruling in Town of Amherst (which held that the district court lacked jurisdiction to impose a civil penalty in excess of $25,000), and that the amendment was not a substantive change in the law and therefore should be applied retrospectively to the instant case, which was filed before, but not decided until after, the effective date of the amendment. The state senate stated the purpose of the bill was to “clarifies that each day of a violation for a land use ordinance constitutes a separate offense. The reason this clarification is necessary is because of a recent New Hampshire Supreme Court decision which will keep many municipalities out of District Court….” Thus, the court found that the legislative history demonstrated that the amendment was intended to remedy a perceived defect in the law. 

The court found that the only consequence of the amendment was that the Town was relieved of the need to transfer to superior court if it wanted to collect more than $25,000. Because this expansion of the jurisdiction of the district court was remedial, the amendment could be applied to the instant case. Accordingly, the court held that the trial court did not exceed its authority when it imposed the penalty of $344,025 on the defendant. 

Town of Bartlett v Furlong, 2015 WL 5559856 (NH 9/22/2015)


On June 18, 2010, appellant applied for a permit to build an eldercare facility on the property pursuant to section 14.3.1, which encompasses the approval of such facilities in an RA–1–K zone. Appellant’s project involved the demolition of five existing single family homes and eight related buildings, and the construction of up to 128 units to accommodate 156 elder residents. After the South Valley Area Planning Commission declined to approve an eldercare facility proposed by appellant Levi Family Partnership, appellant sought an administrative mandamus against respondent City of Los Angeles. In denying the mandamus request, the trial court concluded that the Commission’s findings were adequate to support its decision.

Appellant alleged that the Commission could not merely make negative findings regarding the facts required for the project’s approval specified in section 14.3.1, but was obliged to support those negative findings with additional sub-findings. Section 14.3.1(E) predicates approval of an eldercare facility on “benefit and burden” findings resembling those typically required for a conditional use. Furthermore, under section 14.3.1(E), a single negative “benefit and burden” finding mandates disapproval of an eldercare facility. Thus, the court found the Commission’s negative “benefit and burden” findings “bridge the analytic gap between the raw evidence and ultimate decision or order.”

Appellant next argued that the Commission’s remarks relating to two of its negative findings: that no “unnecessary hardship” had been shown and that the project would be injurious to the neighborhood, mistakenly invoked the standards applicable to variances, as the Commission stated that appellant’s property “could be put to ‘effective use’ without the variance,” and that appellant had not demonstrated the grounds for “a bonafide variance.” Here, the administrative record contained evidence establishing that the project would generate 415 new daily car trips, including 56 daily trips during peak hours. However, because the Commission’s remarks targeted an issue collateral to, and independent of, the project’s incompatibility with the neighborhood, they established no defect in the Commission’s “incompatibility” finding. Accordingly, the court held that there was no reversible error in the Commission’s decision.

Levi Family Partnership, LP v City of Los Angeles, 2015 WL 5918036 (CA App. 9/16/2015)

The primary dispute of this case involved the Board’s grant of a height variance allowing LG to construct a 143.8–foot office building in a business zone where the maximum permitted building height was 35 feet. The height of the building authorized by the variance dramatically affected the view of the historic Palisades Cliffs. The opponents to the variance maintained that the building would ruin the natural beauty of the Palisades Cliffs because it would be visible on the west side of the Hudson River above the tree line from multiple vantage points in New York and New Jersey. The intervenors also challenged the issuance of the bulk variance reducing the number of required parking spaces. The New Jersey State Federation of Women’s Clubs, Scenic Hudson Inc., Margo Moss, and Jakob Franke (the intervenors), Carol Jacoby, and Marcia Davis, appealed from an August 9, 2013 order upholding defendant Board of Adjustment of the Borough of Englewood Cliffs’ site plan approval and grant of height and bulk variances to defendant LG Electronics USA, Inc.

The court found that an applicant seeking a height variance must show: “special reasons,” or the so-called positive requirement; and that the variance can be granted “without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance,” or the so-called negative requirement. Here, the Board was obliged to consider the effect of the proposed height variance on the surrounding municipalities affected by the decision. Here, the Board did not sufficiently determine that the excessive height of the main building would be compatible with the “surrounding neighborhood” because it did not adequately consider whether the proposed height variance was tailored to the purpose for which the height restriction was imposed. Moreover, the Board did not properly determine whether the main building could be constructed “without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.”

Next, the intervenors argued that LG was improperly granted a bulk variance for the number of parking spaces because LG failed to establish that the physical condition of the property prevented them from conforming to the bulk requirements. Here, the reduction in the number of parking spaces would promote a desirable visual environment by eliminating surface asphalt parking, and prevent a degradation of the environment by eliminating the stormwater runoff to the residential neighborhood to the south through the planting of an added tree buffer in place of the asphalt parking. As a result, replacing the surface parking with parking decks and trees created an opportunity for improved zoning and planning that would benefit the community. Thus, evidence was sufficient to support grant of bulk zoning variance allowing reduction in required parking spaces. The court therefore reversed the order upholding the granted height variance. 

Jacoby v Zoning Board of Adjustment of the Borough of Englewood, 2015 WL 6160248 (NJ Super. 10/5/2015)

Fifty Six LLC (“Landowner”) appealed from the trial court’s order granting summary judgment in favor of the Metropolitan Development Commission (the “MDC”). In 2009, local residents, schools, churches, businesses, and other institutions began a community effort to prevent divestment of a local retail area in Millersville. The efforts of members led to the creation of the Millersville at Fall Creek Valley Community Organization and the development of the Millersville comprehensive plan. On May 16, 2012, the MDC held a public hearing and voted on and approved Resolution No. 2012–CPS–R–001 which amended the Comprehensive Plan for Marion County by adopting the Millersville Plan. The Millersville Plan designated Landowner’s Parcel as being located in Critical Area # 4, established land use recommendations for the area and described Landowner’s Parcel using the Revised Description. On September 25, 2013, Landowner filed a motion for summary judgment on the basis that the MDC failed to establish township advisory committees as required by Ind.Code § 36–7–4–504.5 and Marion County Ordinance Section 231–401. Landowner further argued that the MDC did not provide the public with ten days notice of the entire plan, as required by Ind.Code § 36–7–4–507, when it admitted that the Millersville Plan, which was finalized on May 11, 2012, was not made available for public viewing until May 14, 2012, and was approved and adopted by the MDC at the May 16, 2012 public hearing less than ten days later.

Landowner’s Parcel was located in the area described as Critical Area # 4 in the Millersville Plan, and thus Landowner’s Parcel was directly affected by the Millersville Plan and its land-use recommendations. The comprehensive plan was one of several factors that determined future, binding land-use regulations. Thus, the court found that the Landowner had shown that Landowner’s Parcel was or would be directly impacted by the recommendations of the Millersville Plan. As such, it concluded that Landowner had standing to challenge the Millersville Plan.

Next, the court analyzed the text of Ind.Code § 36–7–4–504.5(a), which requires the formation of township advisory committees when “preparing or revising a comprehensive plan for a township” but does not include provisions requiring township advisory committees when a neighborhood or sub-area is the subject of a comprehensive plan. Although Millersville partially lies within both Lawrence and Washington Township, the evidence revealed that the Millersville Plan was not prepared as a revision to the existing comprehensive plans for either Lawrence or Washington Township. Furthermore, the process for adopting township comprehensive plans, including the formation of township advisory committees, was followed at the time comprehensive plans were adopted for those townships. 

As to the notice requirement, the court found that although Landowner received a copy of the Revised Description on April 25, 2012, the final draft of the Millersville Plan was not available to the public until, at the earliest, May 11, 2012, was available on the City’s website on May 14, 2012, and was adopted on May 16, 2012, five days after publication of the final draft. Accordingly, the Millersville Plan did not comply with the requirement that the plan be published in its entirety ten days prior to a hearing pursuant to Ind.Code § 36–7–4–507. The trial court’s holding was therefore reversed.

Fifty Six LLC v Metropolitan Development Commission of Marion County, 38 NE 3d 726 (IN App. 10/7/2015)

In 2009, the petitioners purchased property located in Bridgehampton in the Town of Southampton. The petitioners built a house on the lot, as well as a pool, deck, trellis in the front yard, and an accessory structure under the trellis consisting of a barbecue, sink, cabinets, countertop, and refrigerator. On December 12, 2012, the petitioners’ application for a building permit was denied on the ground that the accessory structure, which served as a kitchen, was not permitted in the front yard. The petitioners subsequently filed an application with the Zoning Board of Appeals of the Town of Southampton seeking setback and area variances for the accessory structure. After a hearing, the ZBA denied the application. The petitioners then commenced this proceeding pursuant to CPLR article 78 to review the ZBA’s determination. The Supreme Court determined that the ZBA’s determination lacked a rational basis and was arbitrary and capricious, granted the petition, and remitted the matter to the ZBA to grant the requested variances.

The court first noted that the zoning board, in applying the balancing test, was not required to justify its determination with supporting evidence for each of the five statutory factors as long as its determination balancing the relevant considerations was rational. Here, the evidence in the record supported the ZBA’s findings that granting the requested variances would produce an undesirable change in the character of the neighborhood, that the variances were substantial, that the petitioners could use a portable unit as a feasible alternative, and that any hardship was self-created. Furthermore, the court found that the three prior ZBA determinations that it submitted in support of its application did not constitute precedent from which the ZBA was required to explain a departure, since the petitioners failed to establish that the applications that led to those determinations bore sufficient factual similarity to the subject application. Accordingly, the Supreme Court’s decision to annul the ZBA’s determination deny the petitioners’ application for setback and area variances was reversed.

Kramer v Zoning Board of Appeals of Southampton, 131 A.D. 3d 1170 (NYAD 2 Dept 9/23/2015)

This appeal arose from a decision of the Supreme Court, New York County, which in a proceeding seeking to annul a determination of respondent Board of Standards and Appeals (BSA), affirmed the denial of petitioners’ application for a permit for an advertising sign. The court also denied the petition insofar as it claimed that the definition of “within view” employed by respondents was arbitrary and capricious, and transferred the question of substantial evidence. Because the “arbitrary and capricious” issue raised by petitioners and disposed of by the court was not an objection that could have terminated the proceeding within the meaning of CPLR 7804(g), and the court reviewed the matter de novo.

Here, the court found that BSA’s interpretation of New York City Zoning Resolution § 42–55 to mean that an advertising sign is “within view” of an arterial highway if it is discernible, using a 360 degree perspective, by a person located on the highway, was not affected by an error of law or arbitrary and capricious. Substantial evidence supported the BSA’s determination that, upon application of the “360 degree standard,” the sign at issue was within view of the arterial highway. Accordingly, BSA’s determination was unanimously confirmed, the petition was denied, and the proceeding brought pursuant to CPLR article 78 was dismissed.

OTR Media Group, Inc. v Board of Standards and Appeals of the City of New York, 2015 WL 6510756 (NYAD 1 Dept. 10/29/2015)

« Newer Posts - Older Posts »



Get every new post delivered to your Inbox.

Join 1,113 other followers