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Restrictive covenants are common conditions of zoning approvals. Municipal boards typically require applicants to record restrictive covenants as a condition of approval. These restrictive covenants are drafted to “run with the land,” meaning the covenants automatically transfer with the property.

Generally, restrictive covenants are enforceable in New York, provided they are reasonable and benefit all property owners in the community and are not inconsistent with public policy or violate a property owner’s rights. See, Deak v. Heathcote Association, 191 AD2d 617 (2d Dept 1993) (party seeking extinguishment of the restrictive covenants must prove (1) lack of benefit derived from enforcement of the restriction, and (2) legally cognizable reason for the extinguishment of the restriction under RPAPL 1951, such as “changed conditions” which render the purpose of the restriction incapable of being accomplished). Continue Reading Restrictive Covenants: The Devil Is in the Details…

Failing to file a notice of claim pursuant to Civil Practice Law and Rules (“CPLR”) Section 9802 can become a trap for the unwary litigator who commences a hybrid proceeding-action (Article 78 claim(s) combined with plenary cause(s) of action) or a strict Article 78 proceeding against a village (see South Nyack Police Assn. v Village of South Nyack, 229 AD3d 635 [2d Dept 2024]).

Section 9802 provides that “no action shall be maintained against the village upon or arising out of a contract of the village” unless a notice of claim has been served. Although this language appears limited, Courts have interpreted it more broadly. Thus, a party bringing any action against a village must plead and prove, as a condition precedent to the litigation, that the party served a written verified notice of claim. The party’s failure to comply with this requirement can be fatal to the claim(s) asserted.

In South Nyack Police Assn., police officers and their association commenced an Article 78 proceeding against the village, mayor, and trustees, seeking to compel the village to compensate the officers for unused sick time. The Supreme Court, Rockland County, converted the Article 78 proceeding into a plenary action for breach of contract and declaratory relief, and denied village’s motion to dismiss. Upon reargument, the Supreme Court granted the village’s motion to dismiss based on the officers’ and association’s failure to comply with Section 9802 (i.e. the officers and association failed to serve a notice of claim).Continue Reading The Importance of Filing a Notice of Claim Against A Village: CPLR 9802 – A Trap for the Unwary Litigator

Recently in BMG Monroe I, LLC v. Village of Monroe Zoning Board of Appeals, the Second Department reinforced strict compliance with all State Environmental Quality Review Act (“SEQRA”) visual impact findings and mitigation conditions.

BMG Monroe I, LLC, (“BMG”) is a developer that owns at 78.93-acre tract of undeveloped land located in both the Town of Monroe and the Village of Monroe. BMG sought to develop 181 residential units on the property.

In 2001, a developer (not BMG) submitted an application to the Town and Village to develop the Property for residential use: the Smith Farm Project. The Smith Farm Project included 181 homes and on-site recreational amenities, including a community green, a recreation/activity center, an outdoor swimming pool, and a network of walking trails.Continue Reading Exact Compliance with SEQRA Architectural Conditions Are Enforceable

Last month, in Cuffaro v Zoning Board of Appeals of the Village of Bellport (Index # 620453/2021), the Suffolk Supreme Court reinforced the existing and binding case law that a municipality’s issuance of a building permit to a similarly situated lot effectively sanctions the subdivision of that property by deed without the requisite subdivision approval.  In a strongly worded decision, the Court held that a municipality cannot rely on a supposed illegal subdivision as a basis for denying an application where it has otherwise sanctioned the subdivision by granting certificates of occupancy to its sister lot. Continue Reading “Grandfathering” By Issuance of Building Permits

Last month, the State’s highest court, the Court of Appeals, upheld the Appellate Division’s decision annulling the New York State Department of Environmental Conservation (DEC) issuance of permits to Sand Land Corporation (“Sandland”) for renewal and expansion of sand mining operations at a 50-acre site in Southampton, New York and remanded the matter back to the DEC. The site, owned by Sandland, is a pre-existing sand mining site.Continue Reading NYSDEC Mining Law Appears Further Undermined by the Court of Appeals

Recently, the Suffolk County Supreme Court affirmed the Southampton Village Zoning Board of Appeals (ZBA) denial of a special permit to subdivide the subject property into two residential lots in the Village’s Office District. In 99 Sanford Place LLC, v Zoning Board of Appeals of the Incorporated Village of Southampton, (Sup. Ct. Suffolk County. Sept. 20, 2022) Justice Linda

Continue Reading Is Prior Precedent Dead in the Village of Southampton? Depends on Who You Ask.

Typically, zoning variances “run with the land”, and absent a specific time limitation, they continue until properly revoked. See, St. Onge v. Donovan, 71 NY2d 507, [1988]. As a result, variances cannot be made to apply only to the current owner. But under the Fair Housing Act (FHA), reasonable accommodations can be made that are essentially personal variances

Continue Reading Zoning – Reasonable Accommodations Under the Fair Housing Act

Zoning codes are constantly evolving in response to perceived or real threats of overdevelopment.  Generally, a municipality may in the reasonable exercise of its police power, amend its zoning code to be more restrictive in the bulk area requirements required for development of a parcel.  Known as a “merger provision” when a landowner purchases an adjacent substandard parcel of land,
Continue Reading Single and Separate Exemptions For Substandard Lots

Last week, in The Seaview at Amagansett, Ltd. v. Town of East Hampton Justice Paul J. Baisely, Jr. found the Town of East Hampton and several of its officials in civil and criminal contempt of the Appellate Division, Second Department’s 2021 decision that restricted access to a 4,000-foot long area of oceanfront property commonly known as “Truck Beach”  in Napeague,
Continue Reading Town Of East Hampton Runs Aground At Truck Beach

The “Special Use Permit” is a zoning term and process used by a municipality to encourage, but still regulate, land use in a zoning district by making it subject to a special review and criteria detailed in the zoning ordinance.  See, Town Law Section 274-b, Village Law Section 7-725-b and City Law Section 27-b.

The “Special Use Permit” also
Continue Reading What’s So Special About Special Use Permits?