View of Hudson River from Upper Nyack, New YorkPetitioner, Claude Simon (“Petitioner”), owns approximately 2.25 acres of property in the Village of Upper Nyack (the “Village”), which he sought to subdivide into two separate lots.  The first lot would contain the existing dwelling and other existing improvements.  The vacant second lot would be improved with a single-family dwelling.  However, the Village advised Petitioner that he would need to
Continue Reading Second Department Affirms Article 78 Reversal of Village Zoning Board Determination

In a recent decision, Matter of Red Wing Properties, Inc. v. Town of Rhinebeck, et al., the Second Department held that a landowner’s intent to continue using its property for mining operations established a valid pre-existing nonconforming use.

Red Wing Properties, Inc. (“Petitioner”) owns roughly 241 acres of property located with the Town of Rhinebeck (the “Town”).  For several
Continue Reading Landowner’s Intent to Mine Property Sufficient to Establish Nonconforming Use

A recent Second Department decision, Matter of Village of Kiryas Joel v County of Orange, et al., addresses the intriguing justiciability doctrine of ripeness, as applied to judicial review of municipal administrative action.

In 2007, Orange County (the “County”) acquired property known as Camp LaGuardia from the New York City Economic Development Corporation.  Originally, the County’s plan was to
Continue Reading Second Department Reverses Dismissal of Article 78 Proceeding on Ripeness Grounds

In Matter of Magid Setauket Assoc., LLC v The Town of Brookhaven Bd. of Zoning Appeals, the petitioners were the owner and the operator (“Petitioners”) of a Shell gas station located in the Old Setauket Historic District (the “Historic District”) Transition Zone, in the Town of Brookhaven (the “Town”).  Petitioners applied for an area variance to permit them to
Continue Reading Court Upholds Zoning Board’s Denial of Gas Station’s Area Variance Application

In Akeson v Inc. Vil. of Asharoken, 2019 NY Slip Op 32756(U), Index No. 57/2018 (Sup Ct, Suffolk County 2019), the Supreme Court dismissed a petition challenging the Incorporated Village of Asharoken’s (“Asharoken”) decisions to deny permits for the construction of seasonal and removable docks at two residential properties along Northport Bay. The two properties lie
Continue Reading Village’s Vitiation of Riparian Rights Survives Initial Challenge

Historic Brownstone Houses in Residential Neighborhood of Fort Greene in Brooklyn

A recent Supreme Court decision, In the Matter of Preserve Our Brooklyn Neighborhoods v. City of New York, demonstrates the difficulty a litigant faces when challenging a zoning determination on constitutional grounds.  The petitioners are “an incorporated association of community members” from the Fort Greene area of Brooklyn (the “Petitioners”), who oppose proposed development in their community in the
Continue Reading Constitutional Challenges to Zoning Subject to Very High Standard

While the Town of Halfmoon (“Town”) in Saratoga County, New York,  may be far from any given reader, the issues in Micklas v. Town of Halfmoon Planning Board, 170 A.D.3d 1483 (3d Dep’t 2019), are close to the heart: whether a golf course may brew beer on-site for its patrons, and does such a brewery constitute
Continue Reading The Appellate Division, Third Department, Holds a Brewpub May Be an Accessory Use to a Golf Course

A recent case from the Appellate Division, Second Department, addresses one of our favorite topics, standing. It is a cautionary tale about how not to establish standing.

Tilcon New York, Inc. v Town of New Windsor involved a hybrid proceeding in which the plaintiff/petitioner asserted nine separate causes of action. The appellate court determined that plaintiff/petitioner lacked standing on each
Continue Reading Lack Of Standing, Once Again, Dooms A Challenge To Municipal Action

Long Island’s potable water supply comes from one place: aquifers. And as the population of Long Island continues to grow steadily upward, this vital subterranean resource faces both a growing demand and a growing threat of pollution from human-driven sources. Consequently, the issues of groundwater quality and groundwater protection have been rising to the top of the list of concerns
Continue Reading East End Town Considering Novel Approach to Speed Up Groundwater Protection Efforts

In Peyton v. New York City Bd. of Standards and Appeals, (2018 N.Y. 06870, 166 A.D.3d 120 (1st Dept 2018), Petitioners-community residents (“Petitioners”) commenced a proceeding to challenge the City of New York (“City”) Board of Standards and Appeals’s (“Board”) resolution upholding the City Department of Buildings’s (“DOB”) decision
Continue Reading Getting Lost in the “Open Space” of New York City’s Superblocks