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Generally, many property owners assume that where a lot is held in single and separate ownership they are entitled to an area variance “as of right.”  That is not entirely true.  An exception to the single and separate doctrine is the doctrine of merger.  Undersized lots that share a common boundary and are owned by the same person or entity
Continue Reading Single and Separate and the Doctrine of Merger

Determining the width of a right-of-way may be more difficult than you think, even when the dimensions are specifically defined.  New York courts take the approach that elevates the right of passage over full use an easement described by deed.

Recently, in Grosbard v Willow Lane, LLC 192 AD3d 773 [2d Dept. 2021], the Second Department confirmed that a right-of-way
Continue Reading Right-Of-Way Width – Not Set In Stone

“An ounce of prevention is worth a pound of cure.” -Benjamin Franklin.  This pithy logic from Benjamin Franklin to prevent fires in colonial Philadelphia should serve as a reminder to municipal boards of the strict compliance required by New York’s General Municipal Law (GML) §239-m mandated by the courts.  In New York, the failure to refer certain actions to the
Continue Reading New York’s General Municipal Law §239-m “An Ounce of Prevention Is Worth A Pound of Cure”

Surprise! During the summer of Covid-19, the Town Board of Oyster Bay passed Local Law 4 of 2020, amending Chapter 246, the Town’s zoning code, to eliminate apartments over stores or offices as a permitted principal use in the Nonresidence District designated as Neighborhood Business (“NB”), Central Business (“CB”), and General Business (“GB”).

This town-wide code amendment prohibiting apartments
Continue Reading Apartments Over Stores Are No More – In Oyster Bay

The tide seems to have turned against the Town and the Trustees of the Freeholders and Commonalty of the Town of East Hampton (Trustees) in a recent decision by the Second Department.  In Seaview at Amagansett v, Trustees, the Appellate Division reversed much of a trial court’s 2016 decision and seemed to erode the Trustees’ ability to issue beach
Continue Reading Truck Beach – Drawing Lines In The Sands of East Hampton

In D.P.R Scrap Metal. Inc., v Zoning Board of Appeals of the Town of North Hempstead, __AD3d__, [2d Dept 2020], the Appellate Division affirmed the grant of the Article 78 Petition of D.P.R. Scrap Metal Inc. (DPR) annulling the Zoning Board Appeals (ZBA) determination as arbitrary and capricious and not supported by evidence.

In this case, DPR operated its
Continue Reading Second Department Scraps North Hempstead Board of Zoning Appeals’ Denial for Lack of Evidence

On September 21, 2020, the Supreme Court, Nassau County in Town of Oyster Bay v. 120 Westend LLC, Supreme Court, Suffolk County, Index No. 608065/2020 granted a preliminary injunction to the Town of Oyster Bay (“Town”) halting the use of an existing hotel as an emergency homeless shelter stating that there is no pre-emption by the State of New York
Continue Reading Oyster Bay Emergency Homeless Shelter Loses State Preemption Argument

This week, a not-for-profit hunters advocacy group, Hunters For Deer, Inc. (HFD), won a decisive victory in the Second Department based on New York’s preemption doctrine.  In Hunters for Deer, Inc. v Town of Smithtown, ____AD3d  (August 18, 2020) the Appellate Division settled a conflict preemption argument between State and local government regulations upholding the State’s authority to regulate
Continue Reading New York State Environmental Conservation Law Preempts Local Municipality Hunting Restrictions in New York

Last week, New York’s State Legislature passed a bill (A10001) seeking to amend NYS Environmental Conservation Law (“ECL”) §23-2703 in order to protect Long Island’s sole source aquifer.  The amendment would allow local governments in Nassau and Suffolk counties the ability to prohibit sand mining operations where it is determined that mining is “inconsistent with water quality protection and public
Continue Reading Long Island Sand Mining Further Undermined By State Legislature Bill

In the Matter of Giora Neeman v Town of Warwick, __AD3d__, 2020 NY Slip Op 03112, the Second Department recently declared that a development agreement entered into between the respondent/defendant Black Bear Family Campgrounds, Inc. (“BBFC”) and respondent/defendant, Town of Warwick, (“Town”) as part of a settlement of a separate civil proceeding, constituted illegal contract zoning, and was therefore,
Continue Reading Municipal Development Agreement: Found To Be Illegal Contract Zoning